Case A53

Judges:
AM Donovan Ch
JD Davies M
GR Thompson M

Court:
No. 2 Board of Review

Judgment date: 12 September 1969.

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A. M. Donovan (Chairman) and J. D. Davies and G. R. Thompson (Members): In his return of income for the year ended 30 June 1967, the taxpayer claimed deductions of $35 and $15, being payments made to chiropractors for ``chiropractic treatment as advised by medical practitioner''. The Commissioner's disallowance of the deductions claimed resulted in this reference to the Board.

2. Evidence was given that the taxpayer consulted a Dr. B for general debility and back and leg pains. On the third visit to Dr. B, it was said in evidence-

``... He gave me no specific diagnosis. I broached the subject of chiropractic, and he gave, at some length, his views on the subject.... Relating his experience in this field, he gave me the impression that the was quite enthusiastic regarding its results, and said that chiropractic manipulation could well have beneficial results in my case. He also wrote a prescription for a type of rheumatic preparation. This consultation was concluded by his telling me to try chiropractic treatment, and he said, `If that does not do you any good, give these pills a try.' This advice I followed.''

No particular chiropractor was suggested by Dr. B and the taxpayer attended a Mr. H, a chiropractor, on a number of occasions. Being dissatisfied with his treatment, he attended a Mr. T, a chiropractor, also on a number of occasions. The treatment having no beneficial result, the taxpayer consulted two other medical practitioners and, on the advice or direction of a doctor, underwent physiotherapy treatment. Dr. B neither communicated with either of the chiropractors concerned, nor specified nor gave directions as to the nature of the treatment to be administered. The fees paid to the chiropractors were $35 and $15 respectively.

3. On these facts, the taxpayer submitted that he was entitled to a deduction under the provisions of sec. 82F of the Income Tax Assessment Act 1936-1967. He relied upon the provisions of sec. 82F(3) (d), and submitted that the fees were paid ``for therapeutic treatment administered by direction of a legally qualified medical practitioner''. It may be accepted, we think, that the fees were paid ``for therapeutic treatment administered''. The question in issue is whether the treatment was ``administered by direction of a legally qualified medical practitioner''. The taxpayer submitted that the therapy was undertaken or received through the instrumentality, causation or guidance or professional advice of a medical adviser, and that the section did not require an authorisation in writing from the doctor or his nomination of a particular therapist or his personal supervision.

4. However, para. (d) of the definition of medical expenses in sec. 82F(3) must be read in the context in which it appears. Medical expenses include payments ``to a legally qualified medical practitioner, nurse or chemist, or to a public or private hospital, in respect of an illness or operation'', and payments ``for therapeutic treatment administered by direction of a legally qualified medical practitioner''. We think that it is reading sub-sec. (d) too widely to take it as comprehending all treatment received which a doctor thinks might be beneficial to a patient. In its context, it logically refers to treatment for which the doctor retains medical responsibility, that is to say, treatment undergone as part of the physician's care of his patient. This impression is confirmed by the words used in the phrase itself. The phrase does not refer to treatment undergone by direction of a physician, but rather to treatment administered by his direction. The direction then is not a direction to the patient but to the person administering the treatment. One looks, therefore, for treatment administered under the instructions or guidance of a physician. Such is plainly the case where a patient is referred by his physician to a particular person for specific treatment.

5. In our opinion, the taxpayer's evidence does not establish that the treatment undergone by him was administered to him by direction of his physician. Our reading of the evidence is that Dr. B felt himself unable to

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assist the taxpayer with treatment save to give him a prescription for some pills which the taxpayer could try but thought that a chiropractor, a person with other skills, might assist him. We think that a doctor's advice or his encouragement to a patient to seek such treatment does not render the treatment when received ``treatment administered by direction of a legally qualified medical practitioner''.

6. For these reasons, we would uphold the Commissioner's decision on the objection and confirm his assessment.

Claim disallowed