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Foreign Affairs, Defence and Trade References Committee
18/11/2015
Mental health of returned Australian Defence Force personnel

ISOLANI, Mr Gregory, Partner, KCI Lawyers

[12:16]

Evidence was taken via teleconference—

CHAIR: We welcome Mr Greg Isolani from KCI Lawyers by teleconference. Do you wish to comment on the capacity in which you appear today?

Mr Isolani : I appear as a private legal practitioner, representing current and former ADF members together with a number of ex-service organisations regarding the policies and the administration of the various compensation schemes governing Defence members and their families.

CHAIR: Would you like to make a brief opening statement, or would you prefer to go straight into questions on your submission?

Mr Isolani : I will go straight into questions, thank you, Chair.

Senator WHISH-WILSON: In your submission I read the summary under 'Identification and disclosure policies of the ADF in relation to mental ill health and PTSD'. Are you suggesting that screening for PTSD at the moment is inadequate within the ADF?

Mr Isolani : I have tried to give a broad and balanced picture. There is screening, and the quality of the screening I think in part relies on the serving member disclosing signs and symptoms or behaviour that may be categorised as experiencing psychological problems which may or may not be identified as PTSD. I am not a psychologist, but perhaps it is how the screening is conducted. Initially, from the East Timor deployment, my clients have told me that they were done in a group session and there was not a real opportunity or inclination to put your hand up to say, 'Yes, I'm suffering from a cluster of problems.' I have now seen the other screening methods and I know they vary. There are tick and flick boxes, and I know there are other occasions where members actually sit down with a psychologist and have a debrief.

I have provided a case study that I forwarded, and a cover letter from a very senior serving officer—a former Special Air Service Regiment member, a special forces commander, who has had extensive deployments. He had a briefing in the United Arab Emirates on his third deployment out of Afghanistan, where he described very serious signs and symptoms of his PTSD but, unfortunately, it was not followed up.

It seems to suggest, whether it is on a pro forma or directly with a psychologist, in part, it requires the member, to open up about how they have been experiencing problems if any, and also the capacity of the person conducting the interview to discern the signs and symptoms that give rise to PTSD. Certainly, the screening, I think, needs to be tightened up or followed up, which is another problem that some members express; that they do have problems remaining and receive a phone call many months after.

Senator WHISH-WILSON: I think at 2.11 in your submission, you say:

The real question in my view is whether there is a transparent system within the ADF that makes a veteran comfortable to know that, by disclosing a psychological condition, it might not result in their rapid medical downgrading or a medial discharge process.

We have heard considerable evidence about the stigma associated with this issue, especially those who have been on deployment that, when they do go through psychological screening, they are well trained in how to answer the questions and avoid detection. It seems to be not just an issue about the screening process itself but how people within the ADF regard the stigma associated with things like PTSD.

Mr Isolani : Just thinking on the run, a policy could be developed and, those with combat experience or returning from deployment, should be given a reasonable degree of assurance that, if they disclose signs and symptoms of a psychological condition from their deployment or what they have taken home with them, because quite often it manifests in antisocial behaviour and so on that I have also outlined that affects family, kids, other mates et cetera. If the ADF said, 'We accept that there's a high probability you may be affected by your deployment but, by disclosing what your problems are, we will give you an undertaking that there'll be no action taken to medically downgrade and discharge you in no less than a two-year period.' There could be something along those lines that gives the serving member the assurance that, if they disclose that they can be treated, and hopefully, subject to how they recover, together with any other problems, they can remain in.

Senator WHISH-WILSON: I was going to ask you if you had any suggestions on processes, but that sounds like an interesting one we have not considered before. In terms of higher education, or other education, have you had much experience with the GI Bill in the US and the comprehensive package that they give veterans to help them with transition?

Mr Isolani : No, I have not. In fact, I raised this with Senator Lambie privately as I thought it would be useful to look at other models that are around. Obviously the UK, Canada and the US, have serving members and a history of deployment that is parallel to the Australian ADF. Why don't we look at what is happening overseas? The numbers are greater. There might be cost benefits of what their particular models are.

I also mention the Israeli models, because they—as you are probability aware—have compulsory conscription or national service, or whatever it is called. I understand that they have a comprehensive policy to debrief: to enable, essentially, civilians, who one day are university students or working in a chemist and, for the next two or three years, they are patrolling the Golan Heights or the West Bank. They are expected to just come back and slip back into normality. There are other countries that may be doing this better, and I think there is a real opportunity to learn from those countries. I do not profess to know what their models are and how successful they are or otherwise.

Senator WHISH-WILSON: You made some strong points in relation to term of reference 7, about the effectiveness of the memorandum of understanding between ADF and DVA. In 7.2 you say:

In my experience, a substantial number of Veterans currently serving who may or may not be targeted for medical discharge, complain of the difficulty to try and prolong their career by seeking essentially alternative duties through an effective rehabilitation program. That is, a program that will enable them the reasonable opportunity to remain in the ADF.

Could you elaborate on that a bit further for us? Is it mainly a cultural issue?

Mr Isolani : Perhaps it comes back to your opening question about identifying PTSD and whether it will involve a rapid medical discharge. For the serving member who is subject to a medical downgrade, what they almost invariably want—I cannot say all—is the opportunity to recover or to regain a reasonable stabilisation of whatever the condition is, both physical and psychological. They want to remain in the ADF. Whilst they may not be able to be commandos or special forces members, they feel they have potential to add to intelligence, communications—a range of things.

One of the biggest laments I hear from clients is that they see the rapid escalation of medical downgrading and discharge as opposed to what the Military Rehabilitation and Compensation Act was to provide, which was that Defence was the rehabilitation provider. They were the determining authority to identify what rehab Defence should offer to keep the serving member in before medically discharging them. It was one of the fundamentals of this act to break down the mentality that had crept into the ADF that, unless you are essentially 100 per cent fit and can perform the inherent duties of your service, you would be medically discharged. It was felt that we had become a bit more refined in that approach and we should offer rehabilitation just as a civilian employee would be entitled to, and in particular for members who are substantially injured.

There are case studies. Quite often I say that unless you are one of the glamour boys, which I do not mean disparagingly, of the substantially injured serving members—the classic example is the Navy member who was attacked by a shark at Garden Island. He did really well with his recovery and prosthetics and he remained in. They kept him in. I have other people saying, 'I have a rotator cuff injury' or 'I have PTSD' and 'It's now under control but I was put on antidepressants, resulting in my med downgrading and then a discharge. Why wasn't I given the rehab? I wanted to do other things within the ADF.' I see it as a big problem. It still is, unfortunately. After 11 years of the inception of this act it is still a recurring theme.

Senator WHISH-WILSON: We have heard a couple of interesting sets of evidence. Mr Evans from Homes for Heroes said today that Defence is—I think he said this—'a forward-looking organisation'. They are always looking to the next war and conflict and having the assets and personnel to deal with that. On the other hand we have heard that there are clients who wish to stay in the Defence Force. Are you saying it is a cultural issue within Defence? Another interesting piece of evidence we heard today is that PTSD is much better understood now and accepted within the Defence Force. Do you believe that that is the case? If so, why is the committee hearing evidence that this kind of thing is being used as an excuse to discharge people and get them out of the way—for want of a better term?

Mr Isolani : It is the fundamental dilemma that in the ADF, as a member, you are not an employee. You cannot turn up with a medical certificate highlighting what your restrictions are and then demand them. You are a servant of the Crown. You can be directed into war zones. You can obviously be operating machinery, weapons and so on. So if you are medicated, even with low-level PTSD, the question for the ADF is, 'Is this person capable and confident? Are we safe around the person?' The balance may be, 'Yes, we are. We can see from the medical progress that they have stabilised. With their experience we can find them alternative service duties, because they have that experience and insight through deployments in particular.' Clearly if clients come to me they are aggrieved. They have had claims rejected and they are annoyed with how their medical condition resulted in a spiralling and ultimate medical discharge and the problems that go with that: adjusting to civilian life, being engaged with DVA for meaningful rehabilitation, compensation payments being paid or offsetting—all the things you have undoubtedly heard.

I still think there is a culture. Unfortunately, the hierarchy needs perhaps over time to have a cultural shift and a generational shift. It is also a funding issue. I quite often hear from senior ranking people as well that they are told by the CO: 'We can't keep you here'. There are other pockets within the ADF. I know two commando regiments are fantastic at keeping members in for extended periods while they are recovering from gunshot wounds. I had a client who was shot through the femur and had extensive surgery, and he was in the last batch of deployments to embark. He is not a poster boy as such; he just works very hard to maintain his fitness. But he did have the benevolence within the unit or the regiment to keep him in. He did not incur the rapid medical downgrading and discharge that others with a knee reconstruction would have experienced.

CHAIR: Just on that point, and it is a very important point, we heard evidence this morning that, because the incident a soldier was involved in was very public, it was reported. A vehicle was blown up and injuries were sustained. That soldier's evidence was that if it was not quite as visible and there was no directly attributable incident people got treated very differently. Is that what you are saying as well?

Mr Isolani : Yes, definitely. Just to go back to the previous senator's question, while PTSD is now far more understood and culturally people can talk about it to a greater degree—that is, having a psychological condition—it is still one of those inherently invisible conditions. It is still one that cuts in and out. Generally it is worse for people at home at night, not when they are around their mates or at times when they are undertaking PT. It sounds awful for those who are injured or wounded in action, but it is better if you have those physical injuries. I had a client like that who was blown up in an IED and who was, ironically, in Iraq. He was on antidepressants and did not want to be deployed to Afghanistan but nevertheless he was. Unfortunately he was hit by an IED and had multiple physical injuries. He is still in. He has been allowed to go to university during Defence time. He is being looked after, to use the vernacular. Again, to give an example that captures some of what the committee is asking, you have those who have clear physical injuries who are quite rightly kept in, have a long period of rehabilitation, are supported by Defence and allowed to look at alternative study, and you have others who experience a rapid medical downgrade and discharge because of a psychological condition which might not impair them to a physical degree but impairs them psychologically. In particular, if they are on medication it kicks in this medical restriction and they are out the door.

CHAIR: If I could take a slightly different tack, in respect of DVA and their structure I believe there is evidence that different regions make decisions on part of the same claim. A claim may need to go to two regional areas or two locations for adjudicating on part of a claim. Considering the fact that they have recognised deficiencies in their computer network—it is basically dysfunctional—and the fact that there has been reported physical posting of claim forms to different parts of the country and to the wrong people, you could not script anything more inefficient than DVA's ability to do the task. Is that your view too? As a practitioner, do you have a view of how claims are handled, and is there a process that works?

Mr Isolani : The delivery of services has been problematic. Historically, I note my submissions from at least 1999 to the Tanzer Review, when they mooted this new scheme, the new Military Rehabilitation and Compensation Act 2004. I mentioned a difficulty to the Senate in 2003, because there is an absence of time limits. I hear there are funding cuts to the department, so there are not as many delegates, and then there was the division between claims administration. So what you are alluding to, perhaps, is that the permanent impairment claims for lump sums for permanent damages are done out of Perth, incapacity payments are now done out of Adelaide and internal reviews of adverse decisions or reconsiderations are done out of Brisbane.

CHAIR: Why is that? Why would you actually design—

Mr Isolani : It seems to be a fractured system now. I cannot, obviously, speak on behalf of the department, but ultimately—

CHAIR: Sorry, I just want to get to that one point. Where is the efficiency in making a decision on aspects of a claim in different parts of the country?

Mr Isolani : In my experience, there is no efficiency. In fact it creates a delay. As late as yesterday, I rang about an incapacity payment for a client who is one of my case studies, Lance Corporal D. He has been waiting for over a year. The delegate said: 'Sorry, that's being dealt with in Adelaide. You have rung me, but I am doing his permanent impairment claim.' I said: 'Can you look on the system? Who am I dealing with in Adelaide so I can ring them?' They physically could not tell me. I then hear other delegates telling me: 'Yes, your client is in Melbourne and you're in Melbourne, but the file is in Brisbane. You will have to contact the Brisbane office.'

CHAIR: But if you are experiencing this—

Mr Isolani : I am not a proponent of privatising, as a philosophy, but you have to think: should part of this administration be done by a national or international insurer like QBE or Allianz? You could say to them: 'Here are the KPIs. You've got to determine the claim within X amount of time, otherwise you'll lose money on the contract we have given you to administer this scheme.' It just seems to be a bigger workload because of the 10-plus years of deployments and a shrinking number of staff—if that is correct. As I said, you should ask DVA that, but anecdotally what I am told is that there have been cuts. There are fewer staff doing more work. The complexity of the schemes after 2004—members covered under the three schemes and all the issues that go with that—is a real issue, I think. In my 23 years of doing military comp, I have not seen it this bad in terms of service delivery, delays and the bureaucratic nightmare of the claims being fanned around the country for different decisions to be made.

CHAIR: So a discharged serviceman or servicewoman dealing with the complexities that you have just outlined, and you are a professional at it—what hope do they have if they are suffering from PTSD and they have to jump through these hoops to get their claim through?

Mr Isolani : It is demoralising, and quite often our clients are ready to give up. A lot of times I feel like I am the person of last resort. Generally, the system directs them into the ex-service organisations, subject to the quality of the pensions officer, the individual involved, how their claims are administered or just the frustration that they experience—those are the ESOs with the same issues we are talking about. And then the serving member tries to do it alone, or after a couple of years they give up and someone says, 'Go and ring this person, this lawyer or that person.' They become really disheartened, because they believe that this transition from the injury to medical downgrade to discharge will segue into claims being lodged, timely decisions being made, reasonable benefits being paid and a coordinated approach occurring between ComSuper and DVA. They are so disheartened, gutted and, obviously, financially precarious that it inflames the underlying problems that they already have to carry with them anyway.

CHAIR: You do not have to be a rocket scientist to work out that early intervention, prompt resolution and early treatment are the goals here, but it seems to be unobtainable in the current way that DVA manages claims.

Mr Isolani : Yes, I would have to agree with that reflection. Perhaps it needs part of this coordination—getting back to the first senator's questions about the interfacing between ADF and DVA. It is something that I have referred to in my submission and with some of the case studies. This is why I think there is the first breakdown. Someone should not be discharged until they know the claims are in and accepted, and if they are not accepted that there is reasonable period for the appeal to be undertaken. If they have a mental health issue, even if that is a non-accepted condition, I understand that DVA should provide access to medical treatment. If they do not have a DVA claim accepted, the serving member should at least know what their ComSuper entitlement is. They should not have to wait up to six months—or, as in one of my case studies that I sent you this morning, they should not have to wait 2½ years for ComSuper to say, 'We have just been advised that you were medically discharged'.

Notwithstanding that the client had lodged his M40—the application for discharge—months before he got out and had to lodge it twice. He comes to me and I have to lodge it for him 2½ years later. Just to make that clear—if someone is not entitled to DVA benefits, for whatever reason, and there is a dispute going on, if they are medically discharged or a private medical discharge, they should have at least the invalidity classification from ComSuper that says, 'You are going to be entitled to a class A or B pension.' So at least there is a level of income support before they get out. They should not be discharged until those fundamentals are known and when it is absolutely certain that all the paperwork is in.

Senator WHISH-WILSON: I have a similar question. In 7.8 of your submission around transitional management, you say:

… pursuant to s64 of the MRCA has deteriorated to the point where a substantial number of Veterans and ESO representatives complain that there is no or little coordination between the ADF ensuring that a “case manager” is provided.

We have heard a fair bit of evidence around the need for more case managers. Could you explain what is going wrong there with the appointment of case managers?

Mr Isolani : Again, I put in the submission the case study of a very senior officer at Singleton, a former SAS member. I cannot say too much about him publicly because everyone will know who I am talking about. This guy was coming back from Afghanistan. He had been suffering already in-country before coming back to Australia. He goes back to Singleton and within months he is identified as needing urgent medical treatment and is hospitalised in August of 2013, where he remains on and off until September 2014. For 12 months he is in and out of a psychiatric unit. He is given a case manager who he entrusts with his DVA claims. He is also a DFRDB ComSuper member. He believes that, having completed the claim forms and having been guided as to what should be done, leading up to his medical discharge he will know how much he is going to get, who is going to be paying him and whether he has a gold card for a range of medical conditions—because some have not been accepted by DVA.

As it turns out, and my case study shows, very little was done. He was medically discharged literally in a hospital bed by the commanding officer and the liaison officer within Singleton who came to his bedside to read out various commendations following his three deployments in 30 years of service. The next day he still did not know who was paying him what and whether he could remain in hospital. He then found out that he made the wrong choice with his DFRDB pension. It is a complex system—you can accept a lump sum, or a part lump sum and part pension. The choice he had made meant that he had suffered a substantial loss. DVA had subsequently accepted the claims and do not have to top him up as much because he elected to receive a higher pension rate. It is indicative.

I am not trying paint every bad example I have as indicative of the scheme, but it is indicative of someone of that rank—very senior rank—who relies on the case manager. As I have outlined in my submission, his issues were that this case manager, who was not properly trained and suffering with his own PTSD, was entrusted to give him accurate advice with substantial financial implications. I would have told him to put in a 'redress of grievance' to stop his discharge until he had the opportunity to know if DVA would accept liability, if he could get advice on his DFRDB combination and what claims were going to be accepted—so if he needed treatment on his hip, that would be covered. It should not be up to me as a private lawyer, a year after the event, to step in and try to unravel all of this. That is the problem.

The other case study was about the M40 not going in—the ComSuper document. People often tell me there are breakdowns with case managers. They entrust them with documents leading up to their separation from Defence—their various incapacity certificates, Defence documents, the separation signal that needs to go to DVA et cetera. In some cases, I am doing the job of the case manager months after they get out because it has not been done.

Senator WHISH-WILSON: So case managers are not a silver bullet for fixing some of the many issues we have heard around transition to civilian life unless they are suitably trained and can relate to the veterans or soon-to-be veterans.

Mr Isolani : I think that is the dilemma. Case managers are drawn from a pool, generally—in my experience; it is a generalisation—of ex-ADF members. As I said in my client's case at Singleton they labour under their own initiative. Their workloads are phenomenal. I do not envy what they have to do with their amount of paperwork. Conversely, they are on Defence establishments with Defence resources, so I would say they probably have more access and pay than I have for that job.

The transitional management scheme has been my bugbear. I raised it with the Senate in 2003 and in various submissions. This TMS—transitional management scheme—was put into the act and enacted because of the problems leading up to this new act in 2004. There was a real push that Defence would accept responsibility as the rehabilitation provider, to coordinate the paperwork to make sure it got to ComSuper and to do that small detail leading up to discharge to avoid the problems that have occurred over decades of serving members getting out and not know how to lodge claims, what the claims were et cetera. As I tell people now, that was my job in the early 1990s. People did not know, before the internet, where to get a claim form and what they could claim. Now people come to me with their filed claims generally lodged. I have to pull them apart to see what schemes may apply, or lodge different claims under different schemes.

Senator WHISH-WILSON: Could you confirm for the committee: are these case managers outsourced or are they employed by DVA or Defence?

Mr Isolani : Thank you for asking. For the case study I have put in for Private Z, I asked him this literally yesterday when I finalised his case study. He is an Afghanistan veteran who got out on physical and psychological grounds. The issue for him is that he put in all of his paperwork but it did not all go to ComSuper—or none of it went to ComSuper. I asked, 'Was the case manager a serving member?' He said, 'No, they were a civilian. They weren't an ex-ADF member.' I asked, 'Were they a DVA employee?' He said, 'I didn't get a card; I don't know who they were.' I have made that point in my submission and my case study with respect to his circumstances. I cannot answer that question; I have no idea. I know the senior officer at Singleton definitely knew that chap was a former serving member and had PTSD himself, and he used the term 'case manager'. So my client said, 'He was my case manager.' I thought that was interesting because, again, I do not know if he is paid by DVA or by Defence or what his actual job responsibility is.

CHAIR: Thank you very much for your evidence and for your submission.

Mr Isolani : A pleasure. Apologies I could not be there in person. Thank you for allowing me to attend by telephone.

CHAIR: No worries. Thank you.