McCutcheon v National Disability Insurance Agency [2015] AATA 624 is a recent review decision as to whether chiropractic treatment was a reasonable and necessary support for a woman with spina bifida, scoliosis and other issues.

The Tribunal focused on section 4 and 34(1) of the National Disability Scheme Act 2013 (Cth), along with the relevant Rules and Operational Guidelines.

The Agency’s argument at [15] focused on whether the chiropractic treatment was likely to be effective or beneficial (having regard to current good practice) and whether it was most appropriately funded through the NDIS. Evidence was given by chiropractors, doctors and in particular a rehabilitation physician (at [50] onwards) who considered NHMRC guidelines and meta-analyses such as in the Cochrane Library.

At [80] the Tribunal member was unable to find in the evidence a basis for concluding that chiropractic treatment cannot amount to current good practice. At [82] the Tribunal held that chiropractic treatment can amount to current good practice for the purposes of s 34(1)(d), though how long it may remain so may require determination over time.

The ‘lived experience’ of the applicant as to the utility of the treatment was given weight (at [90]).

As for whether such treatment was appropriately funded by the Agency, the Tribunal noted that limited Medicare benefits were available for chiropractic treatment and said at [108]:

The fact that a Medicare rebate is available for a treatment might suggest that it is more appropriately funded by the health system than the NDIS, but not necessarily.    The Operational Guideline states that “assistance” by allied health professions including physiotherapy and occupational therapy, both of which are covered by the Chronic Disease Management – Individual Allied Health Services under Medicare program, is more appropriately funded by the NDIS than other parties if it is maintenance care whose primary purpose is to provide ongoing support in order to maintain a level of functioning including long-term therapy/support to prevent functional decline.

Drawing a parallel with physiotherapy, the Tribunal held at [110] that the chiropractic treatment was most appropriately funded by the NDIS.

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