Pianta and Repatriation Commission [2009] AATA 21 (14 January 2009)

Last Updated: 21 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 21

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5959

VETERANS' APPEALS DIVISION		)
	Re		PHILLIP PIANTA

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President S D Hotop Dr P A Staer, Member

Date 14 January 2009

Place Perth

Decision

The Tribunal affirms the decision under review

..........[sgd S D Hotop]........
Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant rendered defence service in Royal Australian Air Force from August 1973 to August 1994 – applicant contracted mental disorder in or about 1992 – diagnosis – delusional disorder or paranoid schizophrenia – appropriate diagnosis is paranoid schizophrenia – Statement of Principles (SoP) – inability to obtain appropriate clinical management for schizophrenia – not related to defence service – SoP does not uphold contention that paranoid schizophrenia on balance of probabilities connected with defence service – paranoid schizophrenia not defence-caused – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70, s 120(4), s120B and s 196B

Statement of Principles concerning Schizophrenia (Instrument No 133 of 1996)

Brew v Repatriation Commission [1999] FCA 1246; (1999) 56 ALD 403

Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80

Repatriation Commission v Money (2008) 100 ALD 527

REASONS FOR DECISION

14 January 2009

Deputy President S D Hotop Dr P A Staer, Member

INTRODUCTION

1. Phillip Pianta (“the applicant”) served in the Royal Australian Air Force (“RAAF”) from 27 August 1973 to 9 August 1994. That period of service constitutes “defence service” (other than “hazardous service”) for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”).
2. On 9 March 1994 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a claim for pension and medical treatment in respect of a condition described as “psychiatric disorder”. On 26 August 1994, however, a delegate of the Repatriation Commission (“respondent”) made a determination that the applicant was suffering from “paranoid psychosis” but that that condition was not “defence-caused” for the purposes of the VE Act. The delegate, accordingly, refused the applicant’s claim.
3. On 15 May 1995 a delegate of Comcare made a determination that the Department of Defence was liable under s14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) to pay compensation under that Act to the applicant in respect of an injury described as “an aggravation of a disease, namely, Delusional Disorder of Persecutory Type”.
4. On 24 March 2005 the applicant lodged with the DVA a claim for disability pension under the VE Act in respect of a condition was described as “paranoid psychosis”.
5. On 8 September 2005 a delegate of the respondent decided that the applicant was suffering from “paranoid schizophrenia” but that that condition was not related to his RAAF service and, accordingly, was not defence-caused for the purposes of the VE Act. The applicant’s claim for disability pension was, therefore, refused.
6. On 5 September 2007 the Veterans’ Review Board (“VRB”) affirmed the respondent’s decision of 8 September 2005.
7. On 12 December 2007 the applicant applied to the Tribunal for review of the VRB’s decision of 5 September 2007.

THE ISSUES AND THE TRIBUNAL’S DETERMINATION

8. The issues for the Tribunal’s determination are:
   • whether the applicant is suffering from a mental disorder, and, if so, the appropriate diagnosis of that mental disorder;
   • whether such mental disorder is defence-caused for the purposes of the VE Act.
9. For the reasons which follow, the Tribunal has determined that:
   • the applicant is suffering from a mental disorder, namely, paranoid schizophrenia ;
   • the applicant’s paranoid schizophrenia is not defence-caused for the purposes of the VE Act.

THE EVIDENCE

10. The evidence before the Tribunal comprised:
    • the “T Documents” (T1-T17) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
    • bundle of documents tendered by the applicant (Exhibit A1);
    • witness statement of Sandra Leonie Pianta, dated 30 October 2008, tendered by the applicant (Exhibit A2);
    • report of Dr John Kemp (including appendices 1-20), dated 17 December 2007, tendered by the respondent (Exhibit R1);
    • report of Dr Victor Cheng, dated 11 April 2008, tendered by the respondent (Exhibit R2); and
    • the oral evidence of the applicant, and Sandra Pianta, Dr Kemp and Dr Cheng.

The applicant’s evidence

11. The applicant confirmed that he enlisted in the RAAF on 27 August 1973 prior to which he had been a trainee with the Postmaster General’s Department for 18 months. He said that he commenced his RAAF career as a radio technician and he later had a flying position as a navigator before subsequently being involved in flying operations, first as an equipment operator and subsequently (from 1990) as a senior officer (Squadron Leader) involved in developing and enhancing aircraft capabilities.
12. The applicant was referred to various performance evaluation reports which were prepared regarding him from 1989 (part of Exhibit A1):
    • as regards the assessing officer’s report dated 19 October 1989 for the period September 1988 to September 1989, the applicant said that he agreed with the report and he did not make any representation in response to it;
    • similarly, as regards the assessing officer’s report dated 6 November 1991 for the period October 1990 to September 1991, he said that he was happy with the report and he did not make any representation in response to it;
    • as regards the assessing officer’s report dated 7 July 1992 for the period October 1991 to 1 July 1992, however, he said that he was not happy with the report because of a reference in the report to his mental instability which, he believed, signalled the end of his RAAF career, and he made a representation to the reviewing officer in response to that report.
13. The applicant elaborated further in relation to the July 1992 report. He said that that report effectively destroyed his “skill capacity” and, as a result, he lost his credibility as a technical expert, without which he could not operate in that capacity. He said that that report meant that he would not be promoted and he would not be able to deal with aircraft again. He believed that that report would cost him money (namely, the skill component of his salary), his credibility and standing, and that his career was “gone”. He added that, prior to that report, there had been conflict in the workplace between him and four of his superior officers, including the assessing officer who made the report of 7 July 1992.
14. The applicant said that in 1993 he was referred to a RAAF psychologist who said “nothing constructive” and just “palmed [him] off” to three psychiatrists. He said that, as a result, he was deemed medically unfit for service in early 1994. He added that, from February 1994 until his discharge in August 1994, he stayed at home because he had been told “not to front work”.
15. The applicant said that none of the psychiatrists who examined him at the request of the RAAF gave him any advice or counselled him about his mental condition; nor, he added, did any of his senior officers in the RAAF counsel him about the treatment he should undergo in order to continue his RAAF career; nor did the RAAF make any attempt to reskill him for his future career in the RAAF.
16. As regards his conflict with his immediate superior officers, the applicant said that he believed that he was being subjected to surveillance – that others were checking up on him, and spying on him – and he wanted to know why, and that this was a source of internal conflict for him.
17. The applicant said that since 1992 he has “heard voices and seen things that others haven’t or didn’t want to admit to”. He added that he “hears voices” maybe once a week – not every day – and he “believes it to be true” but he “simply can’t prove it”. He said that he accepts that he “acts and thinks differently from before”, and he described an instance where he saw a brightly-coloured snake going through a brick wall on his property, yet he could not find any hole in that wall through which the snake could have passed.
18. The applicant said that he has, in recent years, tried three medications which had been prescribed by a psychiatrist (Dr Kemp) but that these had not been successful, and he is presently not taking any medication.

The evidence of Sandra Leonie Pianta

19. Mrs Pianta’s witness statement, dated 30 October 2008, is as follows:

“Phillip and I have been married for nearly thirty years and have three beautiful children. All of them are now making their own way in the world and have moved out of home.
Since joining the RAAF Phillip received good service reports and was well liked and respected among his peers. After taking a Commission Phillip flew all over the world and did many serious jobs for the RAAF. Some of it was not allowed to be discussed outside of work and he always respected that.
After some time things became more difficult. I can’t remember dates as I had three small children at home one of whom became seriously ill in Adelaide. After our move to Canberra things changed again. Philip was sent to see a doctor. He (Phillip) believed the officer in the next office was plotting his demise and said he heard things. More appointments followed and Phillip was invalided out of the RAAF.
Since leaving the RAAF there has been no support for Phillip or myself and family apart from Comsuper and Centrelink (monetary). There was no ongoing treatment suggested or offered.
Phillip’s temper has increased markedly and he talks to himself constantly. He believes events that are completely fictional have happened. I have learnt not to argue but to allow to get past the issue (sic). As yet I have not been physically harmed but I am careful not to inflame any situation.
...
Before these troubles started Phillip was a very fit, healthy and energetic man. He used to ride his bike 15 miles a day to work. Now he tries to keep fit but he gets very tired. He does not sleep well at all. He is very restless and moans and kicks all through the night and wakes up tired in the morning. If he sits down in the lounge chair to read or watch TV he usually falls asleep within 10 or 15 minutes.
Life has been increasingly more difficult and we have found only limited success with some of the drugs that have been prescribed.” (Exhibit A2)

Relevant medical material in Exhibit A1 and in the T Documents

20. A “Psychological Report – RAAF”, dated 24 September 1993, prepared by S H Bongers states as follows:

“1. I was asked to assess SQNLDR Pianta because he was continuing to assert that he is being investigated by RAAFPOL despite being told that he was not the subject of an investigation by either the RAAF Police or any other government department. On 17 September 1993, I interviewed SQNLDR Pianta in the presence of WGCDR B Nugent. During that interview, SQNLDR Pianta described four incidents contributing to his belief that has brought him to notice. Two of the incidents are summarised below:

1. SQNLDR Pianta stated that the most recent incident was a conversation he overheard in a cafe near Goulburn during the week of our interview. As regards that conversation, SQNLDR Pianta told me that he had overheard three men having a conversation about himself. Asked how he knew that, the member said the room he had occupied at AHQAUST was described, and that the conversation also included discussion of a mark on one of his shirts. Because of this, SQNLDR Pianta believed that his room had been searched. The member said that he believed the men were from DFB.
2. In describing an earlier incident, SQNLDR Pianta told me that he walked into the Pass Office at Anzac Park West to find a meeting in progress. He told me that he believes those present at the meeting were talking about him because one looked up and said: ‘There he is!’ SQNLDR Pianta added that, following that statement, he was escorted away from the office by a Protective Service Officer.

2. As you know, SQNLDR Pianta believes that neighbours have been questioned by ‘the Commonwealth’ with a view to determining whether he (the member) exhibited depressive tendencies. As regards that belief, I asked SQNLDR Pianta what his wife thought about neighbours being interviewed. SQNLDR Pianta replied saying that his wife believed that the interviews were childish games. On that, I asked the member whether he thought it possible that some RAAF members were allowing their conversations to be overheard because they knew that he would react. SQNLDR Pianta told me he thought that would be very unlikely, and that one of the men in the cafe would not have been a RAAF member because he had a beard.

...

5. On 20 September 93, SQNLDR Pianta told me, again in the presence of WGCDR Nugent, that he had decided to seek legal assistance to redress his OER assessments, and that until that process was completed he would not cooperate in any further psychological assessment, or in any assessment by a psychiatrist.
6. Given the fact that SQNLDR Pianta has been regarded as being very technically proficient and knowledgeable in the area of his profession, I note the very poor performance reflected by his last two OER evaluations. I note also the distress that SQNLDR Pianta is experiencing because of his belief that he is being investigated, and his refusal to accept assurances that he is not being investigated by either the RAAFPOL, DFB, AFP or ASIO. For these reasons, I believe that we should continue our effort to help SQNLDR Pianta despite his current unwillingness to cooperate. In my opinion, our understanding of the problem and our ability to help this officer can only be helped by our seeking specialist medical opinion and advice. With this in mind, I recommend asking a medical officer to consider referring SQNLDR Pianta to a psychiatrist for that opinion and advice.” (part of Exhibit A1)
   
21. A report of Dr Alan Merrifield, Psychiatrist, dated 9 November 1993, to Dr D Batagol, Senior Medical Officer, Department of Defence, refers to interviews he conducted with the applicant on 19 October 1993 and 3 November 1993 and the history he took from the applicant, and concludes:

“ The greatest probability is that he is suffering from a paranoid complex of considerable magnitude.
He of course rejects this totally.
Whilst further exploration on my part could perhaps clarify the issue, he is reluctant to subject himself to further exploration. The psychiatric intervention he considers will have greatly affected his career despite the evidence that his career had been on the line before my intervention.
There is no treatment that can be provided at this stage, for, in the case of a person without insight, no management program is possible.
Whilst there is a slim possibility he could, with reassurance about his fears, give up his beliefs, the probability is that his ideas will remain unchanged.
I would be happy to see him at any time, but believe that unless he is willing it would be an abortive exercise.” (T4, pp1-6)

22. A report of Dr Rod Milton, Psychiatrist, dated 7 February 1994 to Dr Batagol refers to the applicant’s attendance on 25 January 1994 and the history he took from the applicant, and concludes:

“ SUMMARY: Sometimes a person is thought to be suffering a paranoid disorder, when he is merely in conflict with those around him at work. In such instances the complaints of persecution are limited only to people at the workplace, and are not demonstrated in relation to neighbours, relatives, or people generally.
There is an element of that in this instance, in that Sqn Ldr Pianta told me that he gets on well with neighbours, with other parents at his children’s school, and in general does not demonstrate ideas of persecution apart from those connected with his work.
Nonetheless his perception of being persecuted at work is so widespread and unusual that it would be most unlikely to be able to be explained merely on the basis of, say, personality clashes, problems with administration, or other factors.
I believe the only way to explain Sqn Ldr Pianta’s unusual and pervasive suspicions, and his consequent perception of injustice and associated retaliatory action is that he is suffering from a gravely serious emotional disorder, a paranoid condition. He is clearly delusional, especially given the lack of support for his many unusual allegations.
...
Sqn Ldr Pianta should be medically retired. He suffers a psychiatric illness and in consequence is unfit for duty. He is unlikely to respond to treatment.” (T4, pp 11-14)

23. A report of Dr William Knox, Consultant Psychiatrist, dated 5 April 1994, to Dr Batagol states as follows:

“ ...
I understood that you had referred this air force electronics officer/navigator for a third psychiatric opinion to satisfy Sqdn Ldr Pianta’s wish that another doctor review his case in addition to the efforts of the psychiatrists Dr Alan Merrifield and Dr Rod Milton.
I had for my reference copies of Dr Merrifield’s two reports of 9 November 1993 and 21 December 1993, along with Dr Milton’s report of 7 February 1994.
Dr Merrifield concluded, ‘The greatest probability is that he is suffering from a paranoid complex of considerable magnitude.’ Dr Milton expressed the view that, ‘I believe the only way to explain Sqdn Ldr Pianta’s unusual and pervasive suspicions, and his consequent perception of injustice and associated retaliatory action is that he is suffering from a gravely serious emotional disorder, a paranoid condition. He is clearly delusional, especially given the lack of support for many of his (sic) unusual allegations.’ While I was aware of these findings at the time of my meetings with Sqdn Ldr Phillip Pianta on 15, 18 and 23 March, I did not immediately accept the inevitability of these diagnoses and set out to hear Sqdn Ldr Pianta’s story afresh and form my own conclusions.
I met with Sqdn Ldr Pianta for 45-minutes on the first occasion, but then when it was apparent that there was much detail in the history he was presenting I asked him to see me again, and had a two and a half hour interview with him on 18 March, after having spent a further 30-minutes reviewing his documents. Sqdn Ldr Pianta took it upon himself to visit me on 23 March 1994 and on that occasion we spoke for approximately 15-minutes.
There is no question of any psychiatric illness in this man’s earlier history and Dr Milton has reviewed his life in his report.
Sqdn Ldr Pianta had a successful, active air force career serving as an electronics officer before being assigned staff duties in Canberra where I believe his job involved assessing and acquiring electronic equipment for the Airforce.
This man’s problems arose following critical Officer Evaluation Reports in 1991 and 1992. Prior to this his reports had been satisfactory. He told me that the 1991 OER report was ‘critical but justified’ while he found the 1992 report ‘offensive and biased’.
Sqdn Ldr Pianta told me that he felt his efforts in the year prior to the 1991 report were ‘below par’. He had been promoted, experienced a job change and was working in a new location. He described a learning curve period during this time.
During the period assessed in the 1992 report he believes that his work was ‘middle of the road, satisfactory’, and he was ‘producing output’. He went on to explain to me that it typically takes five years to bring in new capabilities to the Airforce but he had introduced new equipment in his area of expertise over a period of just 18 months.
The difficulties experienced by Sqdn Ldr Pianta appeared to have arisen in the context of these negative Officer Evaluation Reports.
Sqdn Ldr Pianta took exception to certain expressions in the 1992 OER when references were made to his mental health by non-medical senior officers. As a result of his complaints regarding this, stickers were placed on his OER advising future promotion boards to disregard references to the member’s mental state or recommendation for counselling. Sqdn Ldr felt this was insufficient and that his career would be jeopardised by the unfavourable comments against him.
Sqdn Ldr Pianta claimed that there was a personal conflict between himself and the two Wing Commanders who had reported on him, and believes that the negative 1992 report in particular arose on account of these conflicts.
At the first interview with me Sqdn Ldr told me of how he feels that his career has been ‘blown out of the water’ by the psychiatric reports obtained about him. He strongly holds the view that he has no psychiatric or medical condition. He further told me that he has approached the Minister for Defence requesting a full enquiry into what he believes have been investigations against him both within the Royal Australian Air force by a civilian agency. He has not been able to accept reassurances from the RAAF that no investigation has been carried out against him. His belief is that the authority for any investigation into him has come from a higher level than the RAAF itself and that the RAAF has not been at liberty to reveal to him that indeed such and investigation has taken place.
Sqdn Ldr (sic) went on to tell me that if any inquiry carried out at the direction of the minister finds that there has indeed not been any investigation into him he will accept this finding as indicating that his RAAF career is finished, although he told me he will continue to believe that there has indeed been such an investigation held into him and that documents concerning his case are held at some location.
Sqdn Ldr Pianta reiterated his claims to me in the following words, ‘I have been subject to a review by a Commonwealth agency ... on several occasions ... I hold that view on account of what I have observed or heard ... it may be that it is my powers of observation that are at issue here to be resolved.’
The present mental status examination I carried out in regard to Sqdn Ldr Pianta’s behaviour and communications on 15 March 1994 revealed no evidence of psychiatric disturbance other than the fact that there may have been delusional beliefs present. Some aspects of Sqdn Ldr Pianta’s story were suspicious of paranoid delusional content but at this point in my inquiry I had not been able to clearly determine that this man was delusional.
A complicating factor in the history of Sqdn Ldr Pianta’s difficulties is the apparent leaking of information from one of his OER assessing officers, via this man’s wife to Sqdn Ldr Pianta’s wife, to the effect that they were concerned about his health. This unethical incident, apparently confirmed by Mrs Pianta, although I have not spoken to her myself, has probably given some substance to Sqdn Ldr Pianta in regard to his wider suspicions.
Squadron Ldr Pianta believes that he has been ‘subject to indecision and procrastination’ in regard to formal complaints he has made to the RAAF regarding his belief that he is being investigated. Although a number of the claims that he has made have been investigated and found to be without substance there are apparently several matters which have not yet been fully explored to Sqdn Ldr Pianta’s satisfaction.
This man told me that he ‘doesn’t have an ongoing sense of being investigated; there is no pervading sense of someone watching me all day, everyday’. However he feels that there have been periodic incidents ‘highlighted through my observations’.
Sqdn Ldr Pianta has come to believe that a Wing Commander ... had reported him for disclosing sensitive material in the Edinburgh RAAF Base’s officers mess on one occasion in July or August of 1992 I believe. Although Sqdn Ldr Pianta was never formally questioned by the RAAF regarding this he told me that he overheard and saw a ‘debriefing session which occurred later between Wing Commander ... and a civilian in the office that Sqdn Ldr Pianta shared with Wing Commander .... Although Sqdn Ldr Pianta told me that it was perfectly apparent to the two other men that he was there, they spoke in confidence about him as though he were not present, to the effect that the civilian reassured the Wing Commander saying, ‘We don’t consider there is a problem’. Sqdn Ldr Pianta went on to tell me that the civilian apparently checked with Wing Commander ... whether or not Sqdn Ldr Pianta could overhear their conversation, but was reassured that he could not since there was a relatively noisy air conditioner operating in the room. Nonetheless Sqdn Ldr Pianta claims to have overheard this conversation.
I felt that such a scenario was unlikely but not impossible. Sqdn Ldr Pianta believed that no attempts been (sic) made to confirm or deny this conversation.
Sqdn Ldr Pianta told me of other circumstances in which his neighbours came to him in November of 1992 and told him that they had been questioned on three occasions by RAAF police, reportedly telling Pianta that this had ‘scared the shit out of them’. However when Sqdn Ldr Pianta later again spoke to his neighbours they denied that there had been such inquiries. The service police did talk to the neighbours on one occasion but this was only subsequent ot Sqdn Ldr Pianta’s allegations. When I asked him how he could explain the neighbours’ change of story he told me that he could not explain it and would have to ‘pass on that....’.
In yet another episode Sqdn Ldr Pianta came to believe that Wing Commander ... accused him to (sic) being a homosexual in February of 1992 at a time when this subject was topical within the RAAF and new policy regarding it was being made. He believes that a written report was submitted regarding him although he has not seen it. He is aware of these occurrences only, as he put it, ‘anecdotally’. Sqdn Ldr Pianta has taken action through Freedom of Information channels to determine if a report on this subject was lodged concerning him. He is still awaiting the RAAF’s attention to this request I understand.
Sqdn Ldr Pianta believes that the RAAF would have difficulty in complying with the FOI request since it would ‘open a pandora’s box ... it would also impinge on other statements and allegations made against me’.
Yet again on either the 3rd or 10th of February 1994 Sqdn Ldr Pianta believes that a ‘member of a civilian organisation was tasked by a senior RAAF officer’ to investigate an allegation that Pianta was the subject of. Sqdn Ldr Pianta went on to tell me that the ‘allegation was that I had passed sensitive material through an Israeli company to the government of that country. The civilian also noted, in fact highlighted, the fact that his organisation had been asked by a third agency to do the same thing.’
This conversation apparently took place in an office next to Sqdn Ldr Pianta’s, and he had been able to hear ‘every word’ through the wall.
In a precursor to this incident Sqdn Ldr Pianta had come to believe that the Israelis had told an Air Commodore ... that they knew more than they should have, and had invited the Air Commodore to conduct a survey of his staff, including Sqdn Ldr Pianta, who had denied providing any information to the Israelis.
Sqdn Ldr Pianta went on to tell me of the incident that he has described in his 14 February 1994 ‘Incident Report’ which he has submitted to the RAAF concerning discussions between a Wing Commander ... and an intelligence officer concerning these Israeli matters. These most recent events apparently occurred in Sydney where Sqdn Ldr Pianta was visiting in the course of his duties.
Sqdn Ldr Pianta told me that it is his ‘clear understanding that the civilian organisation involved has written to the Minister concluding their work’. This information came to Sqdn Ldr Pianta’s knowledge when he was incidentally in Parliament House on February 10th in the public gallery and overheard Mr ... in conversation on this subject to a Member of Parliament. Sqdn Ldr Pianta understood them to say to effect that ‘ASIO had reported to the Minister for Defence, Science and Personnel that they had no problem with Pianta’.
At this point in my inquiries I found it quite impossible to believe the string of incidents which had occurred regarding Sqdn Ldr Pianta, and formed a belief that he did indeed hold paranoid beliefs about himself and his work environment.
Sqdn Ldr Pianta further told me that he ‘expects to be sacked, and resents being lied to and lied about’.
It is my view that even if there is substance to some of what Sqdn Ldr Pianta has told me concerning the nature of his work and certain investigations into him, although I have no evidence that indeed such have taken place, the descriptions of the conversations that he has reputedly overheard, and the unlikely environments in which these have taken place, leads me to believe that they are figments of Sqdn Ldr Pianta’s imagination by and large.
I must concur with the findings of Drs Merrifield and Milton in regard to Sqdn Ldr Pianta.
Sqdn Ldr Pianta came to visit me on 23 March 1994 and asked that as far as I was able to I should allow the administrative investigation he has initiated with the Minister to proceed. On this occasion I informed Sqdn Ldr Pianta that I believed that he was in all probability suffering from a paranoid condition in regard to his beliefs since I could not accept a good deal of what he had told me. Nonetheless I agreed with his request that I should review my opinion in regard to his paranoid condition if after full investigation by the Minister his contentions were indeed correct.
Sqdn Ldr Pianta told me that there was ‘a ministerial in place and he wanted a fair go’.
I believe that it is in the interest of Sqdn Ldr Pianta’s ultimate health for him to feel that there has been a satisfactory investigation into his allegations, and I think it is not unreasonable of him to expect that this should be undertaken by an outside objective agency of sufficient authority to get to the bottom of things. If this is not done then Sqdn Ldr Pianta’s beliefs will continue to drive him to seek a full explanation of his beliefs. While I do not believe that he will necessarily change his beliefs if there is a negative finding arising from any inquiry, he will accept that the matter has been investigated as far as it is ever likely to and not further press his case. He told me how important it was for him to ‘stick it as far as I can for resolution ... to expend my options ... it is important for me’.
I would make a diagnosis of Delusional Disorder of Persecutory Type as listed under code 297.01 in DSM-III-R. Sqdn Ldr Pianta meets the diagnostic criteria for this condition. There is no evidence of associated psychiatric illness in this man’s case. He is not suffering from schizophrenia.
The condition is likely to continue indefinitely, and due to his lack of insight Sqdn Ldr Pianta will be most unlikely to seek treatment. If he were to seek treatment the prescription of major tranquilliser medication may reduce the intensity of his beliefs, but it is probable that even with such treatment he would continue to hold to the beliefs that have grown in his mind in recent years.
Away from his workplace, and his dissatisfactions with it, however he may be able to settle into a reasonably stable life pattern with his paranoid beliefs encapsulated and not to a great extent interfering with other areas of his personal life. However the problems could conceivably spill over into his wider personal environment causing future difficulties and the need for psychiatric intervention.” (T5, pp31-36)

The evidence of the medical witnesses

Dr John Kemp

24. Dr Kemp, Consultant Psychiatrist, has prepared several reports regarding the applicant as follows.
25. Dr Kemp’s initial report, dated 16 August 2005, is addressed to the DVA and states as follows:

“ Thank you for asking me to interview and report on Mr Phillip Pianta who attended for consultations to prepare this report on 13 July 2005 and 2 August 2005. I also had the opportunity to interview his wife and obtain a collateral history.
Mr Pianta provided a very large collection of documentation regarding his case and legal difficulties he has experienced. These included reports from a previous Psychiatrist, Dr Alan Merrifield, dated 12 July 1994 (sic) and 9 November 1993, Dr William Knox dated 5 April 1994, Dr Rod Milton dated 7 February 1994 and the Medical Practitioner employed by Australian Government Health Service, Dr Gary Sturdy dated 12 May 1997.

DIFFICULTIES IN ASSESSMENT
The assessment of Mr Pianta was complicated by his lack of insight into his suffering from any mental disorder. Despite previous reports from Psychiatrists and his discharge from military service on grounds of severe psychiatric illness he does not accept that he is mentally ill.

PRESENTING COMPLAINTS
Mr Pianta has a wide range of complaints about matters that occurred during his military service and subsequent to discharge. He believes that he has been subjected to conditioning, hypnosis, manipulation by security agents, deceit and fraud by the Commonwealth, his daughter has been sexually abused by Commonwealth Agents, that Defence and Security Agents have interfered with his children at school and that he has been deliberately chemically contaminated.

BACKGROUND HISTORY
Mr Pianta was born in Collie in Western Australia and his father was a coalminer and his mother a housewife. He was the fourth child of five siblings and described having had a happy childhood with a rural upbringing. His father died in November 1992 from heart disease. Mr Pianta left Collie at age sixteen to go to Perth and commence an apprenticeship with the PMG. He then joined the RAAF as a radio technician and completed training at Laverton. He was posted to Amberley and Williamstown and was selected for officer training. He was a navigator and then cross trained into electronics and electronic warfare and interception.
Mr Pianta is married, his wife does not work and he has three children, a daughter and two sons. The middle son suffered from Meningococcal Meningitis in about 1991 and was left with residual neurological deficits including hearing loss in one ear and scoliosis.
Mr Pianta has lived in ..., Western Australia, since 1994 with his family.

MEDICAL HISTORY
Mr Pianta denied any significant medical problems and takes no medication. He told me he strives to be physically fit by walking a few kilometres five times a week.

PSYCHIATRIC HISTORY
Mr Pianta has been reviewed by Psychiatrists in 1993 and 1994 with a diagnosis of Paranoid Psychosis or ‘delusional disorder’. He was discharged from service with the Airforce on psychiatric grounds.

MILITARY SERVICE
During his service in the RAAF Mr Pianta rose to the rank of Squadron Leader. He told me he was limited in what he could tell me about aspects of his service due to security considerations. He told me his earliest difficulties with any psychological problems appear to have occurred in about the mid 1980s when he told me he attended a technology course in Melbourne to assess its suitability for trainees. Essentially this was an electronic warfare course run by the Defence Department of a classified nature. He found that he became very stressed and unsettled when he could not keep up with the technological aspects of the course. At other times during the 1980s he was involved in crewing P3 Orions and was a navigator. He reported having done numerous long distance flights over a one month period with broad ocean surveillance of the South China seas and India. In about 1990 he was deployed from Guam and informed me that he was involved in further broad ocean surveillance including Guam, Japan, Fiji and Hawaii. He also reported having done four day runs crewing aircraft around Australia doing surveillance missions. He had a four year stint instructing training school for air crew. He was posted in Canberra for four years between about 1989 and 1993 as an electronics warfare expert.
Mr Pianta reported having become stressed and distressed and his wife noticed the commencement of some paranoid thinking in about 1990 immediately following a very brief deployment to Japan where he said he was involved in establishing links with American security organisations. His deployment to Japan was curtailed as his son became very ill with Meningococcal Meningitis and he was repatriated to Australia on compassionate grounds very rapidly. His wife noticed that following this he began to develop evidence of paranoid thinking and unusual behaviour. Notes from Dr William Knox indicate that Mr Pianta appears to have begun receiving critical officer evaluation reports in about 1991 and by 1993 he was clearly having significant psychiatric difficulties with paranoid thinking and was reviewed by a number Psychiatrists and diagnosed as having Paranoid Disorder.

COLLATERAL HISTORY from wife
Mrs Pianta told me that her husband has never accepted that he suffers from a psychiatric disorder. He believes in his paranoid delusions implicitly and over the years since his discharge from the RAAF has gone on to develop other psychotic symptoms. His delusions have become more florid and widespread and for instance he, at times, believes that there is a firefighter who has come into the house in the middle of the night and given him cardiac massage, that he hears voices talking to him to which he responds at times and he believes his home has been bugged. He has engaged Solicitors who have found it impossible to take instructions from him.

PHYSICAL EXAMINATION
A physical examination was not performed.

MENTAL STATE EXAMINATION
On mental state examination Mr Pianta was a bald headed, bespectacled man who had a very intense manner. He grimaced frequently. He showed some constriction in affective responses particularly when discussing his delusional beliefs regarding the persecution from which he has suffered. He denied experiencing hallucinations during the interview and spoke freely about his paranoid delusions regarding the Commonwealth, persecution, surveillance and interference with his family. His cognitive functioning was intact to standard clinical testing. He denied any suicidal or homicidal ideation.

DIAGNOSIS
In my opinion Mr Pianta is suffering from Paranoid Schizophrenia. It is probable that his initial symptoms of this were restricted to those of a paranoid and delusional nature but there has been deterioration with the development of hallucinations over recent years which therefore lead one to diagnose Schizophrenic Disorder. There is also evidence of some negative symptoms these days with some disorganisation of speech and thinking. He fulfils the criteria for Schizophrenia outlined in DSM-IV as follows:

CRITERIA FOR DIAGNOSIS OF SCHIZOPHRENIA

1. Characteristic symptoms: Two or more of the following, each present for a significant portion of time during a month period.
   1. delusions
   2. hallucinations
   3. disorganised speech
   4. negative symptoms, ie affective flattening, alogia, avolition.
      
2. Social/occupational dysfunction: For a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relations, or self care are markedly below the level achieved prior to the onset.
   

100. Duration: Continuous signs of disturbance persist for at least six months. This six month period must include at least one month of symptoms that meet Criterion A and may include periods of prodromal or residual symptoms. During these prodromal or residual periods, the signs of the disturbance may be manifested by only negative symptoms or two or more symptoms listed in Criterion A present in an attenuated form.
     

4. Schizoaffective and Mood Disorder exclusion: Schizoaffective Disorder and Mood Disorder with Psychotic Features have been ruled out because either (1) no Major Depressive, Manic, or Mixed Episodes have occurred concurrently with the active phase symptoms; or (2) if mood episodes have occurred during active phase symptoms, their total duration has been brief relative to the duration of the active and residual periods.
   
5. Substance/general medical condition exclusion: The disturbance is not due to the direct physiological effects of a substance (eg a drug of abuse, a medication) or a general medical condition.
   
6. Relationship to a Pervasive Developmental Disorder: If there is a history of Autistic Disorder or another Pervasive Developmental Disorder, the additional diagnosis of Schizophrenia is made only if prominent delusions or hallucinations are also present for at least a month.
   

DISCUSSION REGARDING MATTERS AROUND THE STATEMENT OF PRINCIPLES CONCERNING SCHIZOPHRENIA IN RESPECT OF MR PIANTA’S CLAIM
I have reviewed Mr Pianta’s history and documentation in an effort to clarify any service or non service related matters, as per Statement of Principles, that may have contributed to onset or worsening or permanent worsening of his Schizophrenic Disorder and these are listed chronologically below.

1. Mr Pianta’s reported participation in the mid 1980s in Melbourne in the evaluation of technology course which he was unable to keep up with. Although this is clearly related to his service there would be some doubt about whether it meets the criteria in the Statement of Principles that it was a severe psychosocial stressor.
2. Mr Pianta was recalled from overseas deployment in Japan on compassionate grounds following the severe Meningococcal illness of his son in about 1990. This clearly meets the SOP criteria for a severe psychosocial stressor, ie ‘serious injury in close friend or relative’ but it would be up to the Department of Veterans’ Affairs to determine how much of this stressor is service related.
3. Towards the end of his service in the RAAF, Mr Pianta informed me, his flying status was rescinded on psychiatric grounds and that this intensely distressed him. This is a potential stressor that the Department of Veterans’ Affairs will need to determine whether or not it crosses the threshold for severe psychosocial stressor as it at least rates consideration under the category ‘loss of employment’.
4. Compulsory discharge from the RAAF on psychiatric grounds. Mr Pianta’s psychiatric condition has clearly deteriorated since that time and he has been unemployable and has led a very reclusive life. This stressor meets the criteria for a severe psychosocial stressor ‘loss of employment’ along with major financial problems. However it would be for the Department of Veterans’ Affairs to determine how much Mr Pianta’s loss of employment in the RAAF was a service related matter.
5. More generally, Mr Pianta’s claim requires consideration under factor 5D ‘inability to obtain appropriate clinical management for Schizophrenia’. The difficulties that Mr Pianta experienced in obtaining appropriate clinical management relate to the nature of his Paranoid Psychosis/Schizophrenic illness. It would appear on reviewing the psychiatrist’s notes from 1993/94 that Mr Pianta totally lacked insight into the fact that he suffered from a psychiatric disorder that may have been to some extent treatable. Because he lacked insight into his disorder he refused or was never offered treatment in the RAAF and has never obtained appropriate clinical management for his disorder. His inability to obtain appropriate clinical management was due to the nature of Schizophrenic illness.

...

RECOMMENDATIONS FOR TREATMENT
Ideally, Mr Pianta should be treated with antipsychotic medication. He should be followed up by a Consultant Psychiatrist and be assessed by a multi disciplinary psychiatric team for treatment and rehabilitation. This is extremely unlikely to occur due to Mr Pianta’s total lack of insight and non acceptance of his psychiatric diagnosis. It may be that in some point in the future if Mr Pianta’s psychiatric condition deteriorates further and he meets the criteria for involuntary assessment and treatment under the Mental Health Act that he is compelled to have treatment.

PROGNOSIS
The prognosis is extremely poor. Mr Pianta has longstanding delusions, hallucinations and entrenched psychotic phenomena. He has extreme vocational and interpersonal deficits. Even with optimal treatment he is likely to be left with a very significant burden of ongoing psychiatric symptoms and delusional thinking.
...” (T11)

26. Dr Kemp provided a report, dated 30 March 2007, to the applicant’s former advocate as follows:

“ Thank you for asking me to comment about Mr Pianta’s psychiatric condition. In my opinion Mr Pianta is most properly diagnosed as suffering from Paranoid Schizophrenia. I am of the opinion that the onset of this Disorder occurred some time in 1992 or slightly earlier at which time he appears to have developed paranoid ideas, beliefs, delusions and behaviour during his service in the RAAF. It is noteworthy that he was reviewed between 1992 and 1994 by a number of Psychiatrists who made the rather general diagnosis of ‘paranoid psychosis’. This is not a specific diagnosis but certainly includes the possibility of paranoid schizophrenia, delusional disorder and the like. I note that one of my colleagues has reviewed Mr Pianta in 2006 and came to the conclusion he is suffering from a delusional disorder, again probably with onset in about 1992. Mr Pianta has agreed to treatment with antipsychotic medication and has had a trial of taking Risperidone with no objective improvement in his symptoms. He is currently undertaking a trial of Aripiprazole and experiencing some side effects on this medication with excessive sweating but no useful benefit to date. Please do not hesitate to contact me if I can be of any further assistance.” (T16, p78)

27. Dr Kemp provided reports dated 19 January 2007, 26 June 2007 and 25 September 2007 to the applicant’s general practitioner, Dr H Meyer. Dr Kemp’s report of 19 January 2007 states:

“ Thank you for asking me to review Mr Phillip Pianta who attended today. As you are aware, the Department of Veterans’ Affairs asked me to see Mr Pianta back in August 2005. Mr Pianta told me that he has had a trial of taking low dose Risperidone and in effect took 1 mg per day for a couple of months. He reported that he did not notice any effects at all from the medication either adverse or beneficial. Mr Pianta has indicated that he is prepared to have another trial of taking psychotropic medication and will do this under supervision from you and me and allow his wife to provide some feedback about whether or not there is some improvement in his functioning at home. He is planning a trip to Thailand in the immediate future and told me he will come and see you upon his return from the trip to get a prescription and start Risperidone. I would suggest starting him on 1 mg nocte and I will arrange to see him in two weeks or so after he has commenced on this and would plan to escalate the dose by 1 mg every two weeks to reach a target dose of 4 mg nocte. Mr Pianta has indicated that he is prepared to have a trial of medication of 4 mg per day of Risperidone for three months on an experimental basis to see whether or not it produces any benefit for him. From his point of view his most distressing symptoms are those of being preoccupied by his thoughts and inability to attend to routine tasks such as building a veranda for his daughter and attending charity functions. If Risperidone fails to produce any useful benefit at higher dose rates, there is of course the possibility of trialling out some of the more modern atypical antipsychotic agents with little side effects such as Aripiprazole.”

Dr Kemp’s report of 26 June 2007 states:

“ This is to let you know that I reviewed Phillip Pianta today and had the opportunity to interview his wife without his presence. Phillip has been taking Aripiprazole at a dose rate of 15 mg per day and according to him and his wife, has been taking this quite religiously. Initially he had some side effects from Aripiprazole with excessive sweating but this has settled in the past couple of months. At present Phillip does not notice any particular adverse side effects from Aripiprazole but also is only aware of some very subtle improvements in his emotional status. He continues to maintain the validity of his delusional system and experiences, however in terms of other more subtle markers of psychosis, he will admit that he has had a little more energy and drive in the past six weeks and in fact has been very busy helping his in-laws pack up their house and shift out. He has also returned to riding a pushbike eight kilometres every day although in the past used to enjoy racing bikes. His wife reports much more favourable effects on his behaviour and stated that he is less intense and the couple have had little in the way of arguments around his delusional beliefs and she feels that he is generally more calm and more level. She has noticed that he is sleeping better, drinking less beer and a little more enthusiastic.
Given that there seems to be some subtle signs of improvement over the course of the past three months, even though his entrenched delusional system has not been altered, it is my view that it is well worthwhile him continuing on treatment with Aripiprazole just to maintain the level of benefit he has achieved to date.
I have arranged to review Phillip again in about three months’ time.”

Dr Kemp’s report of 25 September 2007 states:

“ I reviewed Phillip Pianta today. Phillip discontinued taking Aripiprazole some three weeks ago. He did not seem to have any specific complaint about any side effects but told me he is quite prepared to try another antipsychotic drug. I have therefore prescribed him Zeldox at a dose rate of 40 mg daily for one week, increasing to 40 mg bd. I will be reviewing him again in about six weeks time or earlier if required.” (Appendix 2 to Exhibit R1)

28. Dr Kemp provided a report, dated 17 December 2007, addressed to Military Rehabilitation and Compensation Service, which states as follows:

“ Thank you for requesting a psychiatric report regarding Mr Phillip Pianta.
Mr Phillip Pianta has previously been referred to me by the Department of Veterans’ Affairs for a psychiatric report and has also been referred by his General Practitioner and consulted me on the following occasions:
19/01/2007, 30/03/2007, 10/04/2007, 24/04/2007, 26/06/2007, 25/09/2007, 20/11/2007, 05/12/2007 and 12/12/2007.
I have also had the opportunity to interview Mr Pianta’s wife and obtain a collateral history from her. I have also had the opportunity to review copious documentation regarding Mr Pianta’s military career and psychiatric treatment in the military and subsequent treatment. I have perused a report prepared by Dr Victor Cheng dated 6 July 2006.
The bulk of the psychiatric report regarding Mr Phillip Pianta is contained in my report prepared for Department of Veterans’ Affairs dated 16 August 2005 .... Subsequent to my preparing the report for the Department of Veterans’ Affairs in 2005, Mr Pianta has attended for treatment on referral from his General Practitioner, Dr Hermann Meyer. I enclose copies of correspondence to Dr Meyer in 2007 detailing his treatment. ... In essence he has had trials of three antipsychotic medications.
...

Disclaimer
In my opinion Mr Phillip Pianta has a difficult psychiatric condition to assess. He does not accept that he is experiencing delusions, false beliefs or hallucinations and holds to the reality and veracity of all these mental experiences and perceptions.
Due to his delusions, which are centred around experiences of surveillance and persecution from Government agencies, it has been difficult over the years for Mr Pianta to cooperate with those agencies to establish if there are any entitlements as he invariably perceives any interactions with Government agencies as some ulterior motive on behalf of the agency.
Any comments about Mr Pianta’s case contained in this report should not be construed as suggesting any lack of skilled care and due consideration by my psychiatry colleagues and/or the military.

It is apparent from a thorough review of Mr Pianta’s case that he developed the onset of a serious psychiatric condition whilst serving as an Officer in the RAAF. His psychiatric condition has continued to the present day and has proved quite disabling in that he has remained unemployed (and in my opinion unemployable) and his psychiatric disorder has had a serious impact on numerous aspects of his life including his ability to engage in social relationships, leisure activities and family relationships.
There is, however, a difference of opinion between Dr Cheng and myself regarding the specific psychiatric diagnosis attributable to Mr Pianta. I prefer a diagnosis of Schizophrenia whereas Dr Cheng opts for a diagnosis of Delusional Disorder. It is likely that Dr Cheng preferred a diagnosis of Delusional Disorder because, in the information available to Dr Cheng, there was no mention that Mr Pianta appeared to have experienced auditory and/or visual hallucinations over a period of time.
...
In my opinion there is evidence that Mr Pianta experiences auditory and possibly visual hallucinations. I accept that he is a very difficult subject to interview given his lack of insight and that even when closely questioned he would not admit to experiencing auditory hallucinations as he perceives these experiences as being reality based.”

[Dr Kemp then referred to documentary material which, he opined, indicated that the applicant had been experiencing auditory and visual hallucinations in the period from October 1992 to December 1994, and continued:]

“ CAUSATION
I turn next to the question of whether or not Mr Pianta’s psychiatric condition and associated incapacity was principally caused by his military employment. In considering this matter the question is complicated by issues around the exact psychiatric diagnosis applicable to Mr Pianta. However, for the purpose of considering the matter of causation, I shall assume that he is suffering from either Delusional Disorder or Paranoid Schizophrenia. In general, both disorders seem to be associated with similar aggravating and precipitating factors, have a cross-over of symptoms in common and at times have a similar prognosis.
In considering the matter of causation I refer to the Statement of Principles for Schizophrenia, Balance of Probability, issued by the Department of Veterans’ Affairs, paragraph 5. Factors

(a) experiencing an event perceived as a severe psychosocial stressor within the 30 days immediately before the clinical worsening of schizophrenia; or
(b) using cannabis within the six months immediately before the clinical worsening of schizophrenia; or
(c) using cocaine within the 30 days immediately before the clinical worsening of schizophrenia; or
(d) inability to obtain appropriate clinical management for schizophrenia.

In my opinion I conclude that the onset of psychiatric illness in Mr Pianta’s case was not related to circumstances of his military service.

AGGRAVATION
Turning to the question of whether Mr Pianta’s employment in the military materially aggravated his psychiatric disorder, ...

[Dr Kemp referred to various of the applicant’s service records, including the abovementioned psychiatric reports of Drs Merrifield, Milton and Knox, and continued:]

“ ... These are factors (ie the making of a psychiatric diagnosis by lay members subsequently requiring administrative action by Pianta to have references stricken from his record and the issue of breach of confidentiality in respect of his wife) that could be aggravating circumstances during his military service....
These matters, at least the initial one in respect of the making of a psychiatric diagnosis by lay personnel are confirmed in reality in the records available in Mr Pianta’s folio of documents. it seems to me that it is quite plausible that Mr Pianta, having gone on to develop a serious psychiatric illness with delusions, has incorporated this matter into his delusional system. It has now become permanently entrenched.
...
It is evident during subsequent courses that Mr Pianta’s psychiatric condition since 1993/94 has gone on to incorporate persecutory delusions and ideas relating to the security status and the belief that he is continuing to receive surveillance from military authorities and ASIO because of this into his paranoid delusional system.
I am of the opinion that the circumstances of Mr Pianta’s employment in the RAAF with the need for security measures and the need for his termination of employment due to him being considered a security risk have contributed to the nature, form and type of the delusions he has gone on to develop and maintain to this day.

FAILURE TO TREAT:
Next I turn to whether the failure to treat Mr Pianta has exacerbated his condition....
Referring to the report of Dr Cheng:

‘ Do you believe that the treatment undertaken to date has been the most appropriate for the condition? Comment on the nature and effectiveness of treatments in terms of condition, symptoms and function. Can you advise of any future treatments which could be beneficial for the claimant to improve the condition, symptoms or functioning?
As stated above, it does not appear that Mr Pianta has had any psychiatric treatment to date. It would appear that he has only had a number of psychiatric assessments and although treatment has been recommended, he has refused this.
A trial of antipsychotic medication is definitely indicated, such as Risperidone at a dose of 4-6 mg per day or Olanzapine at a dose of 10-20 mg per day. This would be beneficial by reducing his paranoia and delusional beliefs.
Please note that due to the length of time he has had symptoms, it is likely that a number of his beliefs are now entrenched and are less amenable to treatment. It is likely that even if treatment was successful, it would stop any further experiences of feeling that he was under surveillance but would be unlikely to affect his beliefs regarding his treatment within the RAAF which now has the characteristics of a memory.
Additionally please note that in general, Delusional Disorder is less amenable to treatment with medications than other psychotic disorders. A significant percentage of people with delusional disorders have symptoms that do not respond to antipsychotic treatment.
If treatment was successful then it is likely that he may be able to look at other employment. It is not likely that he will be able to return back to the armed services because of the various security issues that are raised with people with mental illnesses serving in the armed forces. Additionally it must be noted that the period of time for which he has been unemployed is significant and therefore even if he was symptom-free, this reduces the likelihood that he will be able to return to employment in the civil sector.’

I concur with Dr Cheng in all of the above matters, namely Mr Pianta, up until the date of Dr Cheng’s report, had not had any psychiatric treatment but a trial of antipsychotic medication was definitely indicated and that due to the length of time that he has suffered from the symptoms and not been treated, there is considerable entrenchment of his disorder and that delusional disorder is less amenable to treatment medication than other psychotic disorders.
I conclude that, due lack (sic) of treatment, Mr Pianta’s psychiatric condition has been permanently worsened and exacerbated. I do appreciate that the Military Rehabilitation and Compensation Group might not necessarily be bound by determinations and principles outlined by the Department of Veterans’ Affairs and turn next to a subsidiary issue regarding whether any effective treatment was available for Mr Pianta’s Delusional Disorder/Schizophrenia during his period of military service and following his discharge and what means might have been taken to facilitate that treatment.
It is my opinion that psychiatric treatment was potentially available. Referring to ... report of Dr William Knox, Psychiatrist, ...

‘ the condition is likely to continue indefinitely, and due to his lack of insight Sqdn Ldr Pianta will be most unlikely to seek treatment. If he were to seek treatment the prescription of major tranquilliser medication may reduce the intensity of his beliefs, but it is probable that even with such treatment he would continue to hold to the beliefs that have grown in his mind in recent years.’
...

Antipsychotic medications have been readily available since the 1960s. Their actions and side effects are well known and predictable and have been used in psychotic disorders such as Delusional Disorder and Paranoid Schizophrenia since the 1960s. Although I note that Dr Milton in his report in the final paragraph concludes:

‘ Sqdn Ldr Pianta should be medically retired. He suffers a psychiatric illness and in consequence is unfit for duty. He is unlikely to respond to treatment.’

Dr Merrifield in his report ... states:

‘ There is no treatment that can be provided at this stage, for, in the case of a person without insight, no management program is possible.’
...

I turn next to the issue about whether Mr Pianta could have been treated with antipsychotic medication even though he lacked insight. I answer this clearly in the affirmative. I have had long experience with treating patients with psychoses and many can be persuaded over a period of time to accept treatment with antipsychotic medication. In addition to this normal part of therapeutic process, the RAAF had available a number of options for requiring Mr Pianta to receive treatment:
(a) This could have been done on an administrative basis, ie requiring him to accept certain treatment as part of his continuing employment within the RAAF. I note administrative requirement for medical treatment does happen on occasion in the military forces for instance personnel being sent to certain hazardous areas are required to accept immunisations, take malarial prophylaxis tablets whilst in the area and are subject to disciplinary procedures if they fail to comply with legitimate medical requests such as these. Personnel deployed to the Antarctic have been regularly required to have appendectomy performed.
(b) In all the States and Territories of Australia there are Mental Health Acts which set out the procedures and requirements for compulsory treatment of mental illnesses. Clearly Mr Pianta is a psychiatric patient for whom application of the appropriate Mental Health Act could have been considered because, as noted in the military documents, he presumably represented some security risk. Under the more modern Mental Health Acts such as that as applicable in Western Australia at present, considerations of harm that might arise to others such as breach of military security ... or harm that might arise to the patient such as deterioration due to the inability to receive treatment are identified as possible criteria for the clinician invoking the Mental Health Act. I am not familiar with Mr Pianta’s exact location and the exact wording of the Mental Health Act applicable to him during the period between 1992 and his discharge from military service, however it seems that at least some consideration of involuntary treatment was in order.
....
RECOMMENDATIONS TO MCRS
I strongly recommend to MCRS that a copy of this report and all Appendices be forwarded to Dr Cheng and that he be further requested to consider interviewing Mrs Pianta with a view to obtaining collateral history directly from her and that he review the documentation including this report with a view to reconsidering the differential diagnosis between Delusional Disorder and Paranoid Schizophrenia.” (original emphasis) (Exhibit R1)

29. In his oral evidence Dr Kemp confirmed that he had diagnosed the applicant’s psychiatric condition as paranoid schizophrenia, rather than delusional disorder, because he was satisfied that the applicant “suffers from auditory, visual hallucinations and has done for at least a month in the course of his illness over the past 16 to 18 years”. He said, however, that he thought that the diagnosis of delusional disorder which had been made by psychiatrists in the early 1990s was “reasonable” on the basis of the relevant diagnostic criteria which were applicable at that time because it appeared that those psychiatrists had not been made clearly aware that the applicant was then experiencing auditory or visual hallucinations.
30. Dr Kemp appeared to accept that certain circumstances of the applicant’s RAAF service in the early 1990s – for example, a lay person describing him as paranoid, followed by an adverse performance report, and personal conflicts with superior officers – may have worsened his psychiatric condition. He also referred to the medical treatment that was available for schizophrenia and delusional disorder in the early 1990s. He said that various sorts of medication were then available to treat those disorders. He acknowledged, however, that, in a case where the patient does not have any insight regarding their condition, the job of treating them is “a lot more difficult” but, he added, “not impossible”. He said that, having perused the applicant’s service medical records, it was not apparent that he had been given a prescription or offered any medication or told to take sick leave for his condition. He acknowledged, however, that the effectiveness of such treatment depended on the patient “co-operating with the treatment” and taking the prescribed medication. He agreed that it is an important part of the doctor/patient relationship for the doctor to be honest with the patient and inform the patient regarding the likely consequences of not undergoing treatment, but he added that it was not apparent that that had been done in the applicant’s case.

Dr Victor Cheng

31. Dr Cheng, Consultant Psychiatrist, provided a report, dated 6 July 2006, to the DVA in relation to his assessment of the applicant on that date. That report states as follows:

“ ...
CIRCUMSTANCES OF THE ASSESSMENT
Mr Pianta was a middle-aged man who was neatly dressed, settled and co-operative with the interview process. Generally he was very forthcoming with the information he gave although, as indicated below, there was one point where he was guarded with regards to the information he gave.
He understood the purposes of the assessment and gave consent for a report to be forwarded to yourselves.
The information he presented was internally consistent and he appeared to be genuine in the information he gave.
In terms of relating events, he stated that some events had happened a very long time ago and he could not remember the exact details as it had been more than 10 years ago.
The information below is recorded largely in the manner in which he presented it.

CIRCUMSTANCES SURROUNDING THE CLAIM
Mr Pianta was a 50 year old man who was married with three children aged 23, 21 and 17. He stated two older children had moved out of home.
He stated he was not working at present and last worked in 1994. He stated he left the air force in 1994 and had been on superannuation as well as a disability pension from Centrelink since that time.
He stated that he felt he was eligible for compensation from 1995 but ‘it’s yet to happen’. He showed me a letter in which he felt that the Department of Veterans’ Affairs had admitted that his medical condition had been aggravated by his employment. He stated that he had not been paid any money. He stated he had paid a lawyer for six years who had failed to make any progress. He stated there was a review by Veterans’ Affairs coming up soon.
Mr Pianta stated that later he had a claim but it had been rejected and he had lodged an appeal which he felt had precipitated today’s assessment.
Mr Pianta stated that he had been working in the air force from 1973. He stated he had two jobs in the air force. His first position was as a radio/radar technician lasting for five years and his second position was as an aircrew member which lasted 16 years.
He stated he was discharged as being medically unfit for service because three psychiatrists formed the opinion that he had a Delusional Disorder. He stated that in his opinion he did not have any psychiatric illness.
Mr Pianta stated he saw a psychiatrist after a ‘lay person’ referred to him as being mentally disturbed, ... He stated this influenced his career from that point and caused him to see the first psychiatrist in 1992. He stated he did not want to be discharged from the air force and would return back tomorrow if he was given the chance.
When asked regarding his employment history subsequent to his discharge, he stated he had not worked since then because it didn’t involve flying aeroplanes. He stated he disagreed with being medically discharged and disagreed with the diagnosis of a delusional disorder or paranoid schizophrenia. He said for a long time administratively he was in conflict and believed that ‘I’m the aggrieved party and done wrong by’. He stated he ‘lacked the abilities to resolve it’.
Mr Pianta stated for a long time he concentrated on looking forward to returning to work rather than finding other work. This was offered as an explanation as to why he had not worked in any other duties since 1994.
He also stated with his diagnosis of paranoid schizophrenia/delusional disorder that he didn’t believe he could ‘hold liability for any sort of employment’. He explained that because of his previous diagnosis he felt that if he ever had a workplace disagreement he would lose as his credibility had been damaged by the psychiatric opinions. He stated as a result he did not feel that he could return to a workplace and also did not see any merit in working in any ‘sheltered workshop’.
Mr Pianta stated he had not seen anyone for treatment and had not taken any medications. He stated he had not been admitted to hospital. As he disputed the diagnosis he was not prescribed any medications during his time in the air force and he was not admitted for treatment.
When asked specifically about his experiences in the armed services, referring to his complaints of people thinking that he was homosexual, he stated that that was a ‘workplace conflict in 1992’. He stated that was an episode which ‘had a start and an end’, although at the time it gave him ‘grief’. He stated that it was resolved in 1993. He stated that it was something which ‘occurred at the time’ but not to his face and ‘it was not official’. He believed it was an attempt to slander him because of his conflict with Mr ... and a desire of some people to have him sacked. He stated that he overheard conversations intimating that people believed he was a homosexual. He stated he could not recount word-for-word what had happened as it was many years ago.
Mr Pianta stated after he left in 1994 for all that year he didn’t work as he was on sick leave and he was told he was not required before he was medically discharged.
When asked the purpose of people labelling him homosexual, Mr Pianta stated he saw it as slander and that it would affect his future employment and credibility.
Mr Pianta stated that over three years he saw three psychiatrists and he understood one was an ‘eminent psychiatrist and the other two were competent’. He stated that they all came to the conclusion that he had a psychiatric illness. He stated that in his opinion he was sacked as he was in conflict with the Commonwealth.
He felt that Mr ... made the report that he had a mental illness as a ‘mechanism’ to get him sacked. He stated that this was initiated by Mr ... as ‘he didn’t want me around’. When asked why the three psychiatrists would go along with the idea of making a diagnosis when one did not exist, Mr Pianta stated he had ‘no idea’, stating, ‘I didn’t pay for them though’. He added at the time he didn’t know what was going on.
When I enquired regarding the reported comments that he previously made that his neighbours had been interviewed by the armed services, Mr Pianta confirmed that he still held the belief that his neighbours had been approached by the RAAF or ASIO. He stated he learnt of this in Canberra when his neighbour ‘told me’.
He stated that he was living in ... Lyons in Canberra in 1992. He believed that either someone from the RAAF Security branch or ASIO approached his neighbours to interview them regarding himself. He stated as an aside to this people who hold security clearances are subject to review and vetting and he believed that this occurred.
He stated that a neighbour two houses to the left of him called Brian whom he had known socially, told him that he had been interviewed by some people. He stated that this admission occurred when he was out on his front lawn and that there was a third neighbour who was present at the time who witnessed the conversation. Mr Pianta stated that the conversation with Brian was very brief and both of them said that someone was asking questions.
Mr Pianta stated that subsequently he understood that the RAAF Security branch did interview his neighbours after his allegations but that his neighbours denied that they had made those statements to him. He stated he never went back to confront them as to why they had changed their minds, but it was his belief that he had been lied to about this since 1992 by ‘just about everybody’.
He stated subsequent to that he did not trust people on any level on any subject, although he did not believe that everyone was involved in everything. He felt that there were some people who continued to lie to him and he was not sure who they were.
Mr Pianta stated he stayed at that address until 1994 and in the two years he did not talk to his neighbour about it again. He stated he didn’t confront the man as after he saw the first psychiatrist it didn’t matter. He stated, ‘as soon as someone says you’re delusional you don’t win another argument’. He stated as soon as the RAAF came back and said it didn’t happen ‘it was a done deal’ and he felt that he couldn’t do anything about it.

CURRENT PSYCHOLOGICAL SYMPTOMS
Mr Pianta stated that he felt sure that since 1992 that he had been under surveillance. In terms of the evidence which satisfied him, he stated that he thought he had ‘seen and heard things’, although he couldn’t substantiate it. When asked about this, he gave me an example saying ‘for instance you could call the receptionist in to have a discussion’ and ‘tell the receptionist that she could become an axe murderer’. He then stated ‘and tomorrow I could go to the police station and report that you had told the receptionist that, but when the police came to interview you and if you both denied it, then I’m crazy’.
He stated no doubt he had choices in 1992 which he didn’t take and if he had taken other choices things would not turn out the way that they did. He felt that, as he did not have the ability to prove his concerns in the courtroom, his story would not be believed.
Mr Pianta then stated that he felt that he had been under surveillance subsequent to leaving the air force. He believed that at times his house had been under surveillance in terms of video cameras and audiotapes and that he had searched the house but had found no evidence of this.
He stated that he did believe he had been under surveillance since 1992 at various times. For example, he stated there had been occasions more than once when he had observed people with a camera take his photograph in the street with slightly longer lenses. He acknowledged he was in a tourist area, although he stated there was no doubt he was the subject of the photograph. He stated he had no idea why he would be under surveillance and why they would want his picture.
When I asked him how often he had these beliefs, Mr Pianta drew a picture on a piece of paper of a timeline between 1992 and 2006 and he indicated that there were periods where he believed he was under surveillance followed by long periods where he believed that he was not under surveillance. These periods seemed to last for months.
When asked why people would continue to spend resources to keep him under surveillance, he stated he agreed that being kept under surveillance for lengthy periods since 1992 would cost a lot of money. He stated he did not know why it was happening and he did not believe he had a mental illness. He stated that, however, Mr ... did go on to become the head of the air force and was currently being sued in the Supreme Court by another air force member because of his ‘administrative approach’. He stated potentially Mr ... could be a state governor and ‘how hard would the state go to protect one of its own’.
Mr Pianta stated that his wife denied everything and did not believe his version of the events. He attributed this to the fact that in 1992 the second psychiatrist to see him in Canberra interviewed his wife and held a discussion with her and ‘he put it to her’ that he was subject to a mental disorder. He stated that she had held that belief since. He stated that when his wife ‘took on the belief’ that he had a mental disorder, it had coloured his wife’s perception of everything. He sated that, ‘if you were to invite her in to ask her, she would deny everything in front of me’. He stated this would lead to him feeling very angry.
He stated that as a result generally they did not talk about what happened very often with his wife as it would lead to some conflict between the two of them. He stated that they now talked about it very rarely and only talked about it at times when there was ‘a procedural step’.
Mr Pianta stated that their relationship was okay and that they were continuing to sleep in the same bedroom.
In terms of his children, he stated that his eldest daughter is 23 years old with a degree in psychology. He stated that she had seen his psychology reports and he felt that she did not think that he fitted the mould of some of the diagnoses he had been given, although he stated that she no longer gave it much thought as she had her own work.
Mr Pianta denied hearing any auditory hallucinations, although when asked specifically whether he had heard people talking about him outside his house, he stated he had heard people outside the house. He stated at times he had gone out to investigate but there had been no one there. He stated that they lived in a very quiet and isolated environment and at times he had heard people outside the house for some periods. When asked whether or not he would hear people talking about him specifically outside the house, he refused to elaborate and stated ‘it’s nothing I can prove’. He stated he had ‘no messages through the electronic media’ and did not have evidence of delusions in reference to the television or radio.
Mr Pianta stated his mood was okay. He denied feeling depressed although he stated he had a degree of anger, frustration and less tolerance than he used to have.
He stated he was slightly ‘anti-social’ indicating that on a personal level he did not have any friends although he stated his wife had friends that would come to visit the house and he would go out to the family He stated he did not have a friend he could call up and do something with.
Mr Pianta stated that apart from his family he couldn’t remember the last occasion he had a meal in another person’s house, although he stated that this did not bother him.
He denied any suicidal ideation.
He stated his sleep was okay and had no problems getting to sleep. He stated he would go to bed at 11.00 pm and be awake by 6.30 am but would sometimes wake up in the middle of the night to go to the toilet. He stated his wife had told him that he would wake up because of his snoring.
Mr Pianta stated that his appetite and weight had been reasonably consistent. He stated he had no problems with concentration and memory.
He did not describe any panic attacks.
...
MENTAL STATE EXAMINATION
On mental state examination Mr Pianta was a middle-aged man who was neatly dressed and appropriately groomed. He was settled and co-operative with the interview process, although when asked regarding experience of hearing things outside his house, he refused to elaborate.
He did not appear to be responding to unseen stimuli.
Rapport was established during the assessment and he was not perplexed or pre-occupied.
His speech was normal in rate, tone and modulation. There was no formal thought disorder although he did have a slightly formal way of speaking, some of which is reflected in the quotations and information presented above.
He spoke relatively slowly. His mood appeared to be euthymic and his affect in particular was quite warm and reactive, at time making jokes and ironic remarks.
There was no evidence of suicidal ideation.
It appeared that he continued to have feelings of at times being under surveillance lasting for months in the past. I was unable to clearly elicit any evidence of auditory hallucinations.

ANSWERS TO SPECIFIC QUESTIONS
PART 1 CAPACITY FOR EMPLOYMENT
1. Is the employee currently incapacitated for work?
Yes
2. Is the employee wholly or partially incapacitated for work?
N/A

3. If the employee is incapacitated, is the principal cause of the incapacity attributed to the accepted condition resulting from their military employment?

Probably not

4. Where the military employment is not the principal cause, please describe the chronology and the significance of the conditions contributing to the incapacity and how (if at all) the military employment has initially caused/aggravated/exacerbated or accelerated the incapacity for work?

In my opinion, at the time of the assessment, Mr Pianta was suffering from Delusional Disorder, persecutory type as pursuant to DSM IV.
...
Mr Pianta described a long history of paranoid and persecutory beliefs dating from 1992 which has continued subsequent to his discharge from the RAAF to the present. These beliefs were non-bizarre. He did not have any evidence of auditory hallucinations on my examination. He did not exhibit evidence of thought disorder, there was a preserved affect (it was not blunted and was quite warm) and his functioning otherwise was relatively preserved. Mr Pianta was able to continue a relationship with his wife and did not come to the attention of other authorities in the time subsequent to his discharge from the RAAF. He did not exhibit and (sic) bizarre behaviours and was appropriate in the interview.
I noted from the collateral history that Mr Pianta felt that he was under surveillance from either the armed forces or ASIO although it was reported from the RAAF administration that this was not the case. Additionally Mr Pianta felt that the other staff felt that he was homosexual and were making references to this in their conversations although this was not supported.
Significantly, since leaving the RAAF, Mr Pianta stated that he was convinced that he had been under surveillance for long periods of time. He stated that he had searched the house for surveillance equipment and was convinced for example that people took surveillance photos of him. He also stated that he felt there were people outside his house and would go outside to check.
Whilst there is a possibility that Mr Pianta suffers from Schizophrenia, because of the overlap in symptomatology between the two syndromes and the fact that Mr Pianta was guarded about some of his symptoms (ie there is the possibility that what he heard outside his house were hallucinations), this is less likely given the nature of the delusions, the preservation of his affect, and the lack of formal thought disorder.
The age of onset of his symptoms is also in keeping with the syndrome of Delusional Disorder. The mean age of onset of Delusional Disorder is reported to be at age 40 years being significantly older than the onset of Schizophrenia.
Delusional Disorder (as well as Schizophrenia) is thought to arise from intrinsic factors due to genetic or developmental abnormality and although can be precipitated by environmental events is generally not thought to be caused by environmental events.
It is common for patients to experience an onset of Delusional Disorder and then have difficulties in working because they incorporate aspects of their work into their delusions which causes difficulty with their function at work. In my opinion, this is the case for Mr Pianta, that he has had an onset of psychiatric disorder which has then caused him to be unable to continue to work.
A test of causality is whether or not the disorder would have occurred if Mr Pianta was not in the RAAF but instead was in other employment. In my opinion, his employment is not the principal cause of his psychiatric disorder but rather that he has had the onset of his Delusional Disorder whilst working in the RAAF and the RAAF has become incorporated in his delusional system. The principal cause of his psychiatric disorder is due to intrinsic factors rather than environmental factors.
In my opinion, it is very likely that regardless of the work that Mr Pianta was doing that he would have developed delusional beliefs regarding his work even if he was in alternative work.
Therefore I do not believe that his Delusional Disorder was caused by his employment in the RAAF.
I will now consider whether it can be considered that the armed services have aggravated his Delusional Disorder. Firstly it must be noted that the nature of the work in armed services means that a medical clearance is perhaps more important in terms of fitness for work compared to civil employment. The access to firearms and the nature of the work during a war situation means that there is likely to be more sensitivity as to whether an employee is able to cope with stress or might pose a danger to oneself or others compared to other employers (sic). For example, if Mr Pianta was operating factory machinery in civil employment, the presence of delusions might be disregarded by his employers as long as he was continuing to work satisfactorily.
The armed services are also more likely to put in place mechanisms to detect psychological problems in their employees.
Therefore it is clear that Mr Pianta’s psychiatric disorder has had a greater impact on his work than in similar civil employment and that he has had a higher degree of monitoring of his psychiatric state than in civil employment. However, this does not mean that Mr Pianta’s psychiatric illness has been aggravated by his employment.
Stressors of various kinds can aggravate psychiatric illness. If his work was aggravating his psychiatric illness, it would be expected that his level of symptoms would improve after leaving the stressful situation or environment.
Mr Pianta appears to have had ongoing delusional beliefs in the 10 years subsequent to his discharge from the RAAF. He stated that he still felt that he was under surveillance on a regular but intermittent basis for significant periods of time. This is evidence supporting my opinion that his employment has not aggravated his condition given that if this was the case, then it could be expected that his symptoms would have settled upon leaving his work.
The fact that his symptoms have continued in the years subsequent to leaving the RAAF is supportive of the fact that he developed his Delusional Disorder whilst in the RAAF which interfered with his employment rather than his employment interfering with his Delusional Disorder.
...
PART 2 TREATMENT
Please answer the following questions only if the client (sic) is currently incapacitated.

1. What treatment (including surgery) has the claimant received so far for the condition(s)? If possible, please specify dates of treatment and the treatment provider’s name?

Please refer to the history as present (sic) above.
Essentially, Mr Pianta has not had any treatment for his condition. He has seen a number of psychiatrists for assessment and although he stated that he has been offered psychiatric treatment, states that he has refused as he did not believe that he was unwell.
In the interview, Mr Pianta stated that he was not willing to consider a trial of antipsychotic medication.

2. Do you believe that the treatment undertaken to date has been the most appropriate for the condition(s)? Comment on the nature and effectiveness of treatments in terms of condition, symptoms and function. Can you advise of any future treatments which could be beneficial for the claimant to improve the condition, symptoms or functioning?

As stated above, it does not appear that Mr Pianta has had any psychiatric treatment to date. It would appear that he has only had a number of psychiatric assessments and although treatment has been recommended, he has refused this.
A trial of antipsychotic medication is definitely indicated, such as Risperidone at a dose of 4-6mg per day or Olanzepine at a dose of 10-20mg per day. This would be beneficial by reducing his paranoia and delusional beliefs.
Please note that due to the length of time he has had symptoms, it is likely that a number of his beliefs are now entrenched and are less amenable to treatment. It is likely that even if treatment was successful, it would stop any further experiences of feeling that he was under surveillance but would be unlikely to affect his beliefs regarding his treatment within the RAAF which now has the characteristics of a memory.
Additionally please note that in general, Delusional Disorder is less amenable to treatment with medications than other psychotic disorders. A significant percentage of people with delusional disorders have symptoms that do not respond to antipsychotic treatment.
If treatment was successful, then it is likely that he may be able to look at other employment. It is not likely that he will be able to return back to the armed services because of the various security issues that are raised with people with mental illnesses serving in the armed forces. Additionally it must be noted that the period of time for which he has been unemployed is significant and therefore even if he was symptom-free, this reduces the likelihood that he will be able return (sic) to employment in the civil sector.
...” (part of Exhibit A1)

32. Dr Cheng, at the request of the DVA, prepared a supplementary report, dated 11 April 2008, in response to Dr Kemp’s report of 17 December 2007. In his supplementary report Dr Cheng referred to the documentary material on the basis of which Dr Kemp had concluded that the applicant had experienced auditory hallucinations and was suffering from schizophrenia, and commented:

“... In the case of delusions of reference, patients often overhear unremarkable conversations and come to the belief that the conversations are referring to themselves and then come to a delusional belief as a result, it does not necessarily mean that the conversation heard was a hallucination.
Overall I would normally regard that it is difficult to come to definite conclusions regarding phenomenology on the basis of 2nd or 3rd hand reports, particularly on the basis of written recollections by other people. In this case, the letters and reports that Dr Kemp has referred to as evidence of hallucinations have not been written for the purpose of the diagnosis of Mr Pianta’s condition and therefore I would be wary of drawing definite conclusions from them. I do believe that Mr Pianta has evidenced delusional beliefs as evidenced by the collateral information but would not see the information as evidence that these delusional beliefs are the result of hallucinatory experiences. This is particularly true in the situation where the phenomenology has diagnostic implications. Therefore in my original report, I have raised the possibility that he was suffering from Schizophrenia but in the absence of clear evidence, have refrained from making this diagnosis.
I would accept that when Dr Kemp felt that on interview with his wife that she was able to give a history that Mr Pianta appeared to respond and react to unperceived stimuli.
...
In conclusion, regarding diagnosis, I do not find any additional evidence supporting the diagnosis of Schizophrenia apart from the comment on page 3 of Dr Kemp’s report: ‘On a number of occasions when I interviewed his wife she was able to give a convincing history that Mr Pianta appears to respond and react to unperceived stimuli.’
I note that Dr Kemp has reviewed Mr Pianta on a number of occasions over 2007. In his assessments and in my assessments, there is no reference to evidence of ongoing auditory hallucinations or thought disorder. I am unsure if he is now on medications but I would gather that he continues to refuse medications and is therefore untreated. I would expect that if the appropriate diagnosis is of Schizophrenia, he could be expected to continue to exhibit other symptoms of Schizophrenia at the present time.
Finally I note that in my original report, I did have the suspicion that he was currently experiencing auditory hallucinations (please refer to page 9 of my report) although I was not prepared to conclude that this was clearly auditory hallucinations.
Therefore I find little evidence to support the diagnosis of Schizophrenia and Dr Kemp’s report does not lead me to change my diagnosis.
...
Causation
I note that Dr Kemp’s opinion regarding causation match (sic) my own in that I do not believe that his psychiatric illness was caused by his employment in the RAAF.
Aggravation
Dr Kemp’s report does not alter the conclusions reached in my report dated 6 July 2007.
Treatment options
I would (sic) appear that Dr Kemp from my perusal of his report would agree with my suggested ongoing treatment options.
With regard to treatment during the time of his employment with the military, note that I do not detailed (sic) understanding of the operation of the military but it would appear to me that it would be difficult for a body who is assessing Mr Pianta’s fitness for employment to also be put in the position of invoking the Mental Health Act to force Mr Pianta to comply with treatment.
I would agree that Mr Pianta could be asked to take medication as a condition of remaining in the armed forces but I would expect that there would not be much point to this as it would be unlikely that the armed forces would retain a person diagnosis (sic) with Delusional Disorder or Schizophrenia especially if they required ongoing treatment for this condition. Therefore they would not be in a position to make this offer.
In consideration of invoking the relevant state Mental Health Act in order to force treatment, I note that most Mental Health Acts are written with the principles of the least restrictive treatment option and also usually only invoked if there was clear risk of harm to the self or others. It would not appear that Mr Pianta was a risk of harm to himself at any point.
Given his delusional beliefs, understandably that he would be at risk of harm to others whilst he remained in the armed forces because of the nature of his delusions and his access to firearms but a discharge from the armed forces would remove this risk and therefore would remove this as a reason for involuntary treatment.
Finally, a further reason in some Mental Health Acts include risk to one’s reputation. It would be very difficult for a body who was reviewing Mr Pianta’s fitness for employment to be also making a referral for involuntary treatment under a Mental Health Act arguing that he was at risk of damaging his reputation at work when Mr Pianta was refuting the concerns put forward by his employers as being malicious.
Therefore given the circumstances, I am unable to conclude that his employers failed to treat Mr Pianta. It would agree (sic) that treatment has been offered on a number of occasions which has been refused by Mr Pianta. I do not believe that the armed services would have been in a position to treat on an involuntary basis.
...” (Exhibit R2)

33. In his oral evidence Dr Cheng confirmed that, when he questioned the applicant, he denied experiencing auditory hallucinations. Nor, he added, was there any clear evidence in the applicant’s history that he had experienced auditory hallucinations. Given the absence of hallucinations, Dr Cheng said that a diagnosis of schizophrenia was not appropriate in the applicant’s case. He added, however, that if the applicant had in fact been experiencing auditory hallucinations, “that would change the diagnosis” and the appropriate diagnosis would then be schizophrenia.
34. As regards the availability of medical treatment for the applicant’s psychiatric condition, Dr Cheng opined that delusional symptoms are “not usually amenable to anti-psychotic medication” but that, in the case of schizophrenia, “the perceptional abnormalities are more amenable to treatment”. He added, however, that the applicant, when diagnosed with a psychiatric disorder during his RAAF service, had little insight into his condition and was not willing to accept treatment. He further added that, given the applicant’s failure to seek medical treatment for his psychiatric condition after he left the RAAF, it is likely that he received a greater degree of medical attention for that condition during his RAAF service than he would have received if he were a civilian.
35. Dr Cheng acknowledged the possibility that the circumstances of the applicant’s RAAF service made his psychiatric condition clinically worse but he was unable, on the basis of the information provided to him, to express a medical opinion that the applicant’s psychiatric condition had in fact clinically worsened during his RAAF service.

THE RELEVANT LEGISLATION

The VE Act

36. Section 5D(1) contains the following relevant definitions:

“ In this Act, unless the contrary intention appears:
...
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
...
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”

Section 70 (in Part IV) relevantly provides:

“ (1) Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d) in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
...
(5) For the purposes of this Act, the death of a member of the Forces ... shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:

• (a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

...
(d) the injury or disease from which the member died, or is incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
...”

Section 120, which deals with standard of proof, relevantly provides:

“ ...
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
...”

Section 120B relevantly provides:

“ ...
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

• (a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
• (b) there is in force:
  • (i) a Statement of Principles determined under subsection 196B(3) or (12); or
• (ii) a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”

Section 196B relevantly provides:

“ (1) This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act ...
...
(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a) eligible war service (other than operational service) rendered by veterans; or
(b) defence service (other than hazardous service) rendered by members of the Forces; or
(ba) peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
...
Note 3: For factor related to service see subsection (14).
...
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
...
(b) it arose out of, or was attributable to, that service; or
...
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
...”

The Statement of Principles

37. The Repatriation Medical Authority has neither determined a Statement of Principles under s 196B(3) of the VE Act, nor (the Tribunal understands) declared that it does not propose to make such a Statement of Principles, in respect of delusional disorder. The Authority has, however, determined a Statement of Principles under s 196B(3) in respect of schizophrenia, namely, Instrument No 133 of 1996 (“the SoP”), which is presently in force. The relevant provisions of the SoP are as follows:

“ ...
Kind of injury, disease or death

2. (a) This Statement of Principles is about schizophrenia and death from schizophrenia.

(b) For the purposes of this Statement of Principles, ‘schizophrenia’ means a psychiatric disorder characterised by a range of cognitive and emotional dysfunctions associated with impaired occupational or social functioning, and which includes disturbances of perception, inferential thinking, language and communication, behavioural monitoring, affect, fluency and productivity of thought and speech, hedonic capacity, volition and drive, and attention and which fulfils the following diagnostic criteria:
(A) the person has had two (or more) of the following characteristic symptoms, as defined in DSM-IV, each present for a significant portion of time during a one month period (or less, if successfully treated):
(i) delusions;
(ii) hallucinations;
(iii) disorganized speech (eg frequent derailment or incoherence);
(iv) grossly disorganized or catatonic behaviour; or
(v) negative symptoms; (ie affective flattening, alogia, or avolition);and
(B) for a significant portion of the time since the onset of the disturbance, one or more major areas of functioning such as work, interpersonal relations, or self-care are markedly below the level achieved prior to the onset; and
(C) continuous signs of the disturbance persist for at least six months. This six month period must include at least one month of symptoms (or less if successfully treated) that meet criterion A (ie active-phase symptoms) and may include periods of prodromal or residual symptoms. During these prodromal or residual periods the signs of the disturbance may be manifested by only negative symptoms or two or more symptoms listed in criterion A present in an attenuated form (eg odd beliefs, unusual perceptual experiences); and
(D) Schizoaffective Disorder and Mood Disorder With Psychotic Features have been ruled out; and
(E) The disturbance is not due to the direct physiological effects of a substance (eg a drug of abuse, a medication) or a general medical condition; and
(F) If there is a history of Autistic Disorder or other Pervasive Developmental Disorder, the additional diagnosis of Schizophrenia is made only if prominent delusions or hallucinations are also present for at least a month (or less if successfully treated),
attracting an ICD code in the range 295.1 – 295.3 or ICD code 295.6 or 295.9.
Basis for determining the factors

3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that schizophrenia and death from schizophrenia can be related to relevant service rendered by veterans or members of the Forces.

Factors that must be related to service

4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factors that must exist before it can be said that, on the balance of probabilities, schizophrenia or death from schizophrenia is connected with the circumstances of a person’s relevant service are:

(a) experiencing an event perceived as a severe psychosocial stressor within the 30 days immediately before the clinical worsening of schizophrenia; or
...
(d) inability to obtain appropriate clinical management for schizophrenia.
Factors that apply only to material contribution or aggravation

6. Paragraphs 5(a) to 5(d) apply only to material contribution to, or aggravation of, schizophrenia where the person’s schizophrenia was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.

Other definitions
7. For the purposes of this Statement of Principles;
...
‘DSM-IV’ means the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders;
‘ICD code’ means a number assigned to a particular kind of injury or disease in the Australian Version of the International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
‘relevant service’ means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
‘severe psychosocial stressor’ means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury in a close friend or relative, assault (including sexual assault), severe illness or injury, experience a loss such as divorce or separation, loss of employment, major financial problems or legal problems.”

ANALYSIS AND FINDINGS

Is the applicant suffering from an “injury” or a “disease”, for the purposes of the VE Act?

38. The medical evidence before the Tribunal unequivocally establishes that the applicant suffers from a psychiatric disorder, and the Tribunal so finds. Having regard to that medical evidence, however, the appropriate diagnosis of the applicant’s psychiatric disorder is somewhat problematic.
39. The medical evidence before the Tribunal in respect of the diagnosis of the applicant’s psychiatric disorder may be summarised as follows:
    • Dr Merrifield, in a report dated 9 November 1993, opined that the “greatest probability” was that the applicant was suffering from “a paranoid complex of considerable magnitude”;
    • Dr Milton, in a report dated 7 February 1994, opined that the applicant was suffering from “a gravely serious emotional disorder, a paranoid condition” and that he was “clearly delusional”;
    • Dr Knox, in a report dated 5 April 1994, opined that the applicant was suffering from “delusional disorder of persecutory type” and that he was not suffering from schizophrenia;
    • Dr Kemp, in a report dated 16 August 2005, opined that the applicant was suffering from paranoid schizophrenia, and he adhered to that opinion in his report of 17 December 2007 and in his oral evidence;
    • Dr Cheng, in reports dated 6 July 2006 and 11 April 2008, opined that the applicant was suffering from “delusional disorder, persecutory type” rather than schizophrenia on the basis that he had not experienced hallucinations (although he left open the possibility that the applicant was suffering from schizophrenia), and in his oral evidence he accepted that a diagnosis of schizophrenia would be appropriate if the applicant had (contrary to his understanding) been experiencing hallucinations.
40. The Tribunal accepts the evidence of the applicant to the effect that he has, since about 1992, been experiencing auditory hallucinations on at least a monthly basis, and visual hallucinations occasionally but not frequently or regularly, and, on the basis of that evidence and the expert evidence of Dr Kemp, the Tribunal finds that the applicant has since approximately 1992 been suffering, and is presently suffering, from paranoid schizophrenia.
41. The Tribunal also finds that the applicant’s psychiatric disorder, namely, paranoid schizophrenia, is a “disease”, for the purposes of the VE Act.

Is the applicant’s paranoid schizophrenia condition a defence-caused disease, within the meaning of s 70(5) of the VE Act?

42. This matter is, pursuant to s 120(4) of the VE Act, to be determined by the Tribunal “to its reasonable satisfaction” – that is, on the balance of probabilities. Pursuant to s 120B(3) of the VE Act, the Tribunal is to be reasonably satisfied that the applicant’s paranoid schizophrenia condition is a defence-caused disease only if:
    • the material before it “raises a connection between” that condition and the applicant’s defence service; and
    • the SoP “upholds the contention” that that condition is, on the balance of probabilities, connected with that service.
43. In the present case there is no dispute that the applicant contracted a psychiatric disorder during his defence service in or about 1992. There is material before the Tribunal to the effect that at or about that time the applicant perceived that he was experiencing personal conflicts with various superior officers, and that in July 1992 he was the subject of an adverse performance evaluation report by his assessing officer which he perceived as destroying his RAAF career, and that those circumstances caused him great distress and may have contributed to, or aggravated, the psychiatric disorder from which he was then suffering and is continuing to suffer. On that basis the Tribunal is satisfied that the material before it “raises a connection between” the applicant’s paranoid schizophrenia condition and his defence service, for the purposes of s 120B(3)(a) of the VE Act.
44. The critical issue, however, is whether the SoP “upholds the contention” that the applicant’s paranoid schizophrenia condition is, on the balance of probabilities, connected with his defence service, for the purposes of s 120B(3) (b) of the VE Act.
45. The applicant contended that the factors set out in paras (a) and (d) of cl 5 of the SoP existed in his case and that each of those factors was related to his defence service for the purposes of cl 4 of the SoP.
46. As regards the factor set out in para (a) of cl 5 of the SoP, the Tribunal cannot be reasonably satisfied, on the basis of the evidence before it, that that factor exists in the applicant’s case because, even if the Tribunal was reasonably satisfied that the applicant experienced an event perceived as a “severe psychosocial stressor” (as defined in cl 7 of the SoP), there is insufficient medical evidence before it on the basis of which it could be reasonably satisfied that there had at any time been a “clinical worsening of schizophrenia” in the applicant’s case. Furthermore, even if there had been a clinical worsening of the applicant’s schizophrenia condition, the Tribunal could not, on the basis of the evidence before it, make a finding as to the date of such clinical worsening and could not be reasonably satisfied that such clinical worsening occurred within 30 days of his experiencing the event perceived as a “severe psychosocial stressor”, as required by para (a) of cl 5 of the SoP.
47. The existence or non-existence of the factor set out in para (d) of cl 5 of the SoP is a more problematic issue.
48. The meaning of the phrase “inability to obtain appropriate clinical management”, which appears in various Statements of Principles determined by the Repatriation Medical Authority under s 196B of the VE Act, has been considered by the Federal Court of Australia. In Repatriation Commission v Money (2008) 100 ALD 527 Stone J said (at 536):

“In my view the plain meaning of ‘appropriate clinical management’ would include not only active therapeutic treatment but also advice on the management of symptoms and other measures that would improve a patient’s quality of life even if they had no effect on the ultimate progression and outcome of a condition.”

In Brew v Repatriation Commission [1999] FCA 1246; (1999) 94 FCR 80 Merkel J (with whom Mansfield J agreed) said (at 87, 88):

“In my view Sundberg J [at first instance] was quite correct in treating the meaning of ‘inability’ ... as ‘lack of ability; lack of power, capacity, means’ (the Macquarie Dictionary) or ‘the condition of being unable; lack of ability, power or means’: the New Shorter Oxford Dictionary. The dictionary definitions embrace what may fairly be described as objective barriers such as lack of power, capacity or means or a subjective barrier such as the ‘condition of being unable’. Whether the objective or subjective barrier to obtaining treatment is made out in a particular case depends upon the facts of that case.
...
... If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a ‘condition of being unable’ to obtain treatment.”

49. In the present case the evidence before the Tribunal establishes that the applicant, during his RAAF service, was examined, in relation to his mental state, by:
    • S H Bongers, an RAAF psychologist, on 17 September 1993, who recommended that a medical officer be requested to consider referring the applicant to a psychiatrist for an opinion and advice (see paragraph 20 above);
    • Dr Alan Merrifield, Psychiatrist, on 19 October 1993 and 3 November 1993 (following a referral by Dr Batagol, Senior Medical Officer, Department of Defence), who diagnosed a psychiatric disorder and concluded that, by reason of the applicant’s lack of insight regarding his mental condition and his refusal to accept that he had a mental disorder, no treatment could be provided to him at that time because it was not possible to formulate a management program (see paragraph 21 above);
    • Dr Rod Milton, Psychiatrist, on 25 January 1994 (following a referral by Dr Batagol), who diagnosed a psychiatric disorder and opined that the applicant was “unlikely to respond to treatment” (see paragraph 22 above);
    • Dr William Knox, Consultant Psychiatrist, on 15, 18 and 23 March 1994 (following a referral by Dr Batagol in response to the applicant’s disagreement with the opinions expressed by Dr Merrifield and Dr Milton), who concurred with Dr Merrifield and Dr Milton and diagnosed the applicant’s psychiatric disorder as “delusional disorder of persecutory type” and opined that “due to his lack of insight” he would be “most unlikely to seek treatment” (see paragraph 23 above).

Following those examinations and the receipt of reports from those psychiatrists, the Employment Standards Committee within the Department of Defence on 13 April 1994 recommended that the applicant’s RAAF service be terminated on the ground of medical unfitness, and the applicant was formally notified, by letter dated 9 June 1994, that his service was to be terminated on that ground (T5).

50. As regards the abovementioned psychiatric examinations and reports, the Tribunal agrees with Dr Kemp (see paragraph 29 above) that the diagnostic conclusions reached by those psychiatrists, namely, that the applicant was suffering from a paranoid condition or delusional disorder of the persecutory type, rather than schizophrenia, were reasonable and appropriate given that the applicant did not provide any clear history of hallucinations to those psychiatrists. The Tribunal notes that Dr Cheng made a similar diagnosis on the same basis in July 2006.
51. The fact remains, nevertheless, that, although the applicant underwent the abovementioned psychiatric examinations, he did not, during his RAAF service, obtain any medical treatment or “clinical management for schizophrenia” (within the meaning of para (d) of cl 5 of the SoP); nor, indeed, did he obtain any medical treatment or clinical management for the psychiatric disorder from which he had been diagnosed as suffering before his discharge from the RAAF. In the opinion of the Tribunal, however, the applicant’s failing to obtain such “clinical management” was entirely due to his mental state by reason of which he:
    • lacked any insight in relation to his mental condition;
    • failed to provide an appropriate history of hallucinations to the psychiatrists who examined him in 1993-1994; and
    • refused to accept the opinions of those psychiatrists that he was suffering from a mental disorder and he was, accordingly, unwilling to seek or accept medical treatment or advice in respect of such disorder.

Accordingly, although there was no “objective barrier” to the applicant’s obtaining “clinical management”, there was, in the Tribunal’s opinion, a “subjective barrier” to his obtaining “clinical management”, namely, his mental state which, as a matter of practical reality, rendered him unable to obtain such “clinical management”: see Brew (above) at 87, 88.

52. Accordingly, the Tribunal is reasonably satisfied that the factor set out in para (d) of cl 5 of the SoP, namely:

“inability to obtain appropriate clinical management for schizophrenia”

exists in the applicant’s case.

53. The question then arises as to whether the applicant’s “inability to obtain appropriate clinical management for schizophrenia” is “related to” his defence service, as required by cl 4 of the SoP. In accordance with s 196B(14) of the VE Act, that inability will be “related to” the applicant’s defence service if (inter alia):
    • it arose out of, or was attributable to, that service; or
    • it was contributed to in a material degree by, or was aggravated by, that service.

The Tribunal is, however, not reasonably satisfied, having regard to the whole of the evidence before it, that the applicant’s abovementioned mental state, which was the sole cause of his “inability to obtain appropriate clinical management for schizophrenia”, itself arose out of, or was attributable to, or was contributed to in a material degree by, or was aggravated by, his defence service, or was otherwise “related to” that service, for the purposes of cl 4 of the SoP: cf Brew v Repatriation Commission [1999] FCA 1246; (1999) 56 ALD 403 at 408.

54. It follows that the SoP does not uphold the contention that the applicant’s paranoid schizophrenia condition is, on the balance of probabilities, connected with his defence service, for the purposes of s 120B(3)(b) of the VE Act. Pursuant to s 120B(3) of the VE Act, therefore, the Tribunal is not reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s paranoid schizophrenia condition is a defence-caused disease, within the meaning of s 70(5) of that Act.
55. Accordingly, the Tribunal concludes that the applicant’s paranoid schizophrenia condition is not a defence-caused disease, within the meaning of s 70(5) of the VE Act.

DECISION

56. For the above reasons the Tribunal affirms the decision under review.
    

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member

Signed: :...............[sgd E Jordan]........................

Associate

Date of Hearing 19 November 2008

Date of Decision 14 January 2009

Representative of the Applicant Mr J Dalton

Representative of the Respondent Mr C Ponnuthurai

Department of Veterans' Affairs