Opinion Number. 1059

Subject

REPATRIATION REFUSAL OF PENSIONER TO UNDERGO OPERATION OR MEDICAL TREATMENT: WHETHER PENSION CAN BE CANCELLED

Key Legislation

AUSTRALIAN SOLDIERS' REPATRIATION ACT 1920, s. 29

Date
Client
The Chairman, Repatriation Commission

The Chairman of the Repatriation Commission has forwarded for advice the following memorandum:

The Commission has long ago adopted the practice that, if a soldier refused to undergo an operation or medical treatment which, in the opinion of the Departmental Medical Officer was advisable and would probably result in the man's recovery, he should be debarred from receiving certain forms of Repatriation benefits and assistance until he gave his consent.

As regards pensioners, however, the fact of a man refusing to undergo an operation has not been allowed to interfere with the payment of a pension.

The Commission would be glad of your opinion as to whether there is power in the Act to deny to a soldier a pension if he refuses to undergo an operation or submit himself for medical treatment where such operation or treatment will benefit the pensioner.

The Commission desires to know also whether the words 'or by his default renders it impossible to review the pension' in section 29 of the Act have any bearing on the question, taking, for instance, the case of a pensioner where the examining medical officer deems it necessary for the man to enter a hospital for observation, to enable him to satisfactorily review the case for assessment of extent of incapacity, but the man refuses to enter hospital.

Section 29 of the Act provides as follows:

Where any assessment or determination in relation to the pension payable to a member of the Forces under this Part is required to be reviewed, and the member refuses or fails to attend at the time and place fixed by the Commission or a Board for the review, or by his default renders it impossible to review the pension, the Commission may cancel the pension, and any pensions payable to the dependants of the member shall not be continued for more than twelve months from the date fixed for the review.

Apart from that section there appears to be no provision in the Act for the cancellation of pensions except on review. Also, there is nothing in the Act giving

the Commission or a Board power to require a pensioner to undergo medical treatment, and the refusal of a pensioner to undergo an operation or medical treatment which would benefit the pensioner would not, therefore, in my opinion, be a default of the pensioner which would render it impossible to review the pension.

In my opinion, therefore, the pension of a soldier cannot be cancelled by reason only of such a refusal.

As regards the case, mentioned in the last paragraph of the Chairman's memorandum, of a pensioner refusing to enter a hospital for observation to enable his case to be satisfactorily reviewed, that refusal would, I think, be a refusal to attend at the time and place fixed by the Commission for the review. The pensioner could not, of course, be required to undergo any operation or medical treatment while in the hospital.

[Vol.17,p.494]