WorkSafe update 21 June 2021
From 1 July 2021, WorkSafe will provide provisional payments for mental injury claims.
Eligible workers and volunteers who submit a mental injury claim can access provisional payments for reasonable treatment and services while their claim is being determined.
Provisional payments will be available for 13 weeks, regardless of whether a claim is accepted or rejected.
We’ve included a stakeholder pack with information to help you understand the key changes and how your networks can support patients.
The pack includes sample copy and digital assets for you to download and on-share with your networks through your own channels.
What you always wanted to know about secondary psychiatric impairment*
*but were afraid to ask
First – a brief survey of workers compensation
In 2050 B.C., ancient Sumerian law provided compensation for an injury to a worker’s specific body parts, for example, the loss of a thumb was worth twice the value of loss of a finger.
Ancient Greek, Roman, and Chinese laws
Industrial revolution vastly increased the extent/ rate of work injuries. Employers could be sued but not if:
German Chancellor Von Bismarck introduced workers’ compensation in 1884
Victorian Employers’ Liability Act 1886 abolished defence of 3 reasons above
Australian legislation – workers’ compensation
SA Workmen’s Compensation Act 1900
WA Workers’ Compensation Act 1902
Qld Workers’ Compensation Act 1905
NSW Workmen’s Compensation Act 1910
Tasmania Workers’ Compensation Act 1910
Commonwealth Workers’ Compensation Act 1912
Victoria Workers’ Compensation Act 1914
NT Workmen’s Compensation Act 1920
ACT Workmen’s Compensation Ordinance 1951
Victorian Workers’ Compensation Laws
The Workers’ Compensation Act 1914 (modelled on UK Workmen’s Compensation Act 1906)
The first ‘no fault’ statutory benefits scheme.
This scheme paid benefits for injuries “arising out of and in the course of employment” and operated concurrently with the right to sue.
Workers had to choose whether to receive statutory benefits or make a common law claim.
Table of Maims in 1915 amendment that continued almost unchanged until 1985
In 1948 ‘no fault’ extended to injuries ” arising out of or in the course of employment”.
A brief comment on the Table of Maims
The Table of Maims was a list of various injuries with a percentage of the total amount of compensation
The 1914 Act provided a rudimentary Table of Maims.
Special provision is made for the payment of a lump sum ranging from 5% to 100% of £500 in respect of total incapacity where the accident results in loss of a member, or of hearing, or of sight in one or both eyes.
Table of Maims introduced in the Workers’ Compensation Act 1915 e.g.:
Total loss of the sight of both eyes 100%
Total loss of a foot 65%
The latter 2 ‘maims’ was in the legislation in 1946, 1953, 1958, 1973 and 1975.
The Accident Compensation Act 1985 also included the Table of Maims (section 98) but the second of the 2 maims re psychiatric injury was changed to:
Psychiatrists were asked to comment on the percentage of
(later called section 98 claims). There was no method prescribed for determining this, it was a guess.
In 1992 legislation amended the Table of Maims
was substituted by:
An additional section was added –
The Workplace Injury Rehabilitation and Compensation Act (2013) replaced the Table of Maims with the No Disadvantage—Compensation Table listed in Schedule 4. Permanent brain damage and ’pain and suffering’ were excluded.
Accident Compensation Act 1985
ACA 1985 – now acknowledged as a well meaning disaster
workers got too much too soon and for too long – financial failure
The ACA 1985 introduced the American Medical Association Guides to the Evaluation of Permanent Impairment. This was the first use of the AMA Guides in Australia.
Chapter 12 Mental & Behavioral Disorders proved to be a major problem.
There was no method of combining scores and examples given were wrong. Impairment levels ranged from 5% to 60% for the same person. There was real concern that work related psychiatric injury would be excluded.
The User’s Manual was developed informally – the manual introduced the Median method and became the de facto standard, quickly impairment levels became more reliable. It is the basis of the GEPIC.
The Transport Accident Act 1986 was developed in conjunction with the ACA and lead to the formation of the Transport Accident Commission, it included:
Medical Panels were set up in March 1990
The Government recognized 2 major problems with stress claims leading to a significant budget blowout.
The first issue was dealt with in amendments in 1992. A new section was taken from Commonwealth legislation regarding ComCare:
There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following—
(a) management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer; or
(b) a decision of the worker’s employer, on reasonable grounds, to take, or not to take any management action; or
This graph illustrates the dramatic drop in the number of ‘stress’ claims both in overall terms and as a percentage of all claims. Ironically this proved to be a ‘paper tiger’. To my knowledge very few, if any claims were thrown out on this basis.
The second issue of the ‘psych top-up’ proved more intractable
Workers have a physical injury and become depressed. A back injury may lead to an impairment of 15%, the associated depression leads to a psychiatric impairment of 15% and the worker’s impairment has thus reached the 30% threshold for enduring payments and a common law claim.
The Government’s Problem
Serious injury claims went from 1 in 8 in 1993/4 to 1 in 4 in 1995/6 and were still rising.
The legal profession openly boasted that this was the loophole through which they get serious injury status for their clients.
In a survey of 300 claims, over 55% of workers with “serious injury” status after a psychiatric or psychological assessment had never had any psychological or psychiatric treatment, either before or after the assessment.
The financial impact of this loophole was in excess of $300 million.
Introduction of Secondary and Non secondary psychiatric impairment
This financial blowout lead to legislative action in 1996 by the Kennett Liberal government. There was no discussion with the RANZCP or the AMA. In late 1996 the government introduced amendments to the ACA 1985. Amongst the amendments was a new section:
Section 92 (2)
In assessing a degree of impairment under sub-section (1) regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence or secondary to, a physical injury
When introducing this section, the minister gave 4 examples of how this would work.
The minister said that the worker’s psychiatric injury is a direct result of the explosion that caused the physical injuries and the psychiatric impairment.
He said: in that case the psychiatric impairment would be included in the worker’s overall impairment assessment for the purposes of determining serious injury.
Minister: Any resultant psychiatric impairment would be included in the assessment of the worker.
He said ’In both the examples I have given the psychiatric component is not secondary or consequential to the injury. It is a direct result of the events or circumstances in the workplace that gave rise to the physical injury and as such would be included in determining the worker’s impairment level’.
The minister said that:
The Physical impairment is 10 %, impairment from depression not included therefore no serious injury (impairment below 30%).
Eligible for payments if the secondary psychological condition or the physical injury meant unable to work.
The worker would receive benefits at 70 per cent of pre-injury earnings if classified as totally and permanently incapacitated.
Eligible for medical and like services
Compensation under the table of maims.
But no action against the employer at common law unless he qualified under the narrative safety net.
The minister said:
impairment due to chronic anxiety excluded from worker’s impairment
Anxiety state did not arise out of the circumstances that gave rise to the initial physical injury.
Examples 3 & 4 consistent with understanding of 2ndary impairment
By contrast, Examples 1 & 2 imply that ALL the psychiatric impairment from the work injury would be included. This is not our current understanding.
Now we would include impairment from PTSD and exclude impairment due to depression/anxiety from the physical injury!
Comments from the Labor Opposition
The Accident Compensation (Amendment)Act 1996 was passed December 1996
Section 91(2) In assessing a degree of impairment regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
Inserted into the Transport Accident Act 1997 Section S 46A
There was widespread confusion for all. No one, including the courts, solicitors, barristers and psychiatrists knew how to apply this new section of the Act.
There were many newspaper articles about the perceived “injustices”.
One item claimed that a police officer who was shot at and developed PTSD would receive higher benefits than a police officer who was shot and wounded.
How did I deal with this?
My first response
Follow the Minister’s first two examples:
For a worker or a transport accident victim who had both physical and psychiatric injuries from the same accident I assumed that the whole person impairment would be accepted.
Result: The courts took no notice of my explanation and told me I was wrong.
I iInterpreted the legislation strictly. In determining whole person impairment I took no notice of any impairment there was consequential or secondary to a physical injury.
“Doctor, what is the claimant’s whole person psychiatric impairment?”
“I have already told you”.
“But you have only given us the impairment that is not secondary to physical injury!”
“But that is what I am required to do.”
“Doctor, I will ask you again, what is the claimant’s whole person impairment?”
“I did not determine the claimant’s impairment secondary to physical injury as I am not required to do so”.
“Doctor, for the third time what is the claimant’s whole person impairment?”
In other words, my reading of the legislation was not regarded as correct.
My third response
I assumed that since the AMA Guides combined subsidiary impairments using a table, the same process should apply to combining secondary and non secondary psychiatric impairment.
So, more humiliation
“The worker has a whole person psychiatric impairment of 20% and the impairment that is not secondary to physical injury is 15%”.
“So the impairment that is secondary to physical injury is 5%?”
“No, the standard practice of the AMA guides is that subsidiary impairments are combined. According to AMA 4, the combination of two subsidiary impairments of 10% is 19%. I have used the same logic with regard to these subsidiary impairments.”
My fourth response
I assumed that secondary and non-secondary psychiatric impairment were additive
determine whole person psychiatric impairment and impairment secondary to a physical injury, the remainder being impairment not secondary to physical injury. I finally got it right.
It reminded me of the Monty Python skit about the Piranha Brothers
If you paid us protection we beat you up-that didn’t work
if you didn’t pay us protection we didn’t beat you up-that didn’t work
if you paid us protection we didn’t beat you up-that worked!
Introduction of American Medical Association 4th edition
American Medical Association 4th edition published in 1993 introduced into Victoria in 1997
AMA Guides 4th edition would replace AMA2. Chapter 14 Mental and behavioral disorders included a Table.
Section 98 (8) stated that the Reference to AMA Guides referred to the American Medical Associations’s Guides to the Evaluation of Permanent impairment (Fourth Edition).
Two Problems with AMA4 Chapter 14
What to do? In Victoria we chose to expand the User’s Guide and produced the Clinical Guide to the Rating of Psychiatric Impairment (CGRPI) gazetted in October 1997.
In 1999 NSW also decided to use AMA4. There was recognition in NSW of the problems with Chapter 14.
Nigel Strauss and I gave a presentation about the Clinical Guide to the Rating of Psychiatric Impairment to a representative group of NSW psychiatrists.
They ignored our work and developed their own guide based on AMA 4 -The Psychiatric Impairment Rating Scale (PIRS). PIRS is a measure of disability and not impairment. NSW, Qld, WA, NT and Tasmania also began using AMA 4 or 5 and since the PIRS is an expansion of Chapter 14 it was also used, most use a variation of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.
The concept of secondary psychiatric impairment spread to all states and territories except the Northern Territory and the Commonwealth, the ComCare Guides.
In NSW, WA, Qld and Tasmania it was called Primary and Secondary Psychiatric Impairment.
The Victorian Wrongs Act (1958) was amended in 2003 so that a claim could not proceed unless the physical impairment was 5% or more using AMA 4 and the psychiatric impairment was more than 10% according to the GEPIC.
The ACA was replaced by the Workplace, Injury, Rehabilitation and Compensation Act in 2013 (WIRCA (2013) and Section 91(2) became Section 56.
In 2013 South Australia implemented a new Workers’ Compensation and Motor Accident Act that used AMA5 and the GEPIC South Australia also implemented the notion of secondary and non secondary psychiatric impairment but called it ‘Pure Mental Harm’ and Consequential Mental Harm’..
The Labor opposition has been in power for 20 of the last 30 years. Despite their cries of apocalypse they have never sought to rescind Section 92A (now WIRCA S 56)!
Opportunity for an amended version of the CGRPI arose in 2005.
The major changes were:
These changes were incorporated into the new version renamed
The Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC)
Gazetted on 27 July 2006 and incorporated into subsequent legislation replacing Chapter 14 of the 4th edition of the AMA Guides.
Nigel Strauss and myself have trained 140 psychiatrists in use of the GEPIC
Workers Compensation issues continue – Plus ca change etc.
The Report of the Victorian Ombudsman-2020 Follow-Up Investigation into the Management of Complex Workers Compensation Claims is a follow-up investigation to the report published in 2016 and the further report in 2019.
The concerns about Claims Agent selecting ‘hired guns’ lead to centralization of Psychiatric IME bookings
The most recent Ombudsman’s report discusses appointments of IMEs, feedback regarding the new selection criteria, quality assurance issues and changes since the 2016 investigation.
Concern about the lack of availability of Psychiatrist IMEs lead to a 25% increase in fees in April 2019.
There are continuing concerns that WorkSafe do not acknowledge that the skill set required of an IME is additional to the generic skills of medical specialists and general practitioners.
The assumption is that IMEs can perform the tasks required without additional training. This leads to inadequate reports and an apparent vacuum with regard to measures to improve quality. The assumption made by WorkSafe is that their selection criteria, induction and service standards are adequate.
The Most Recent Activity
An Independent Review regarding options for changing the current agent model regarding the management of complex claims arose out of the Ombudsman’s report.
The Options paper was release in 12/2020 with written comments to be made by 29 January 2021.
Fashions in Claims
RSI , in 1985/86 there were 7890 claims compared to 616 claims for RSI in 1994/95.
Stress now second highest cause of claims
Bullying up to 40 % of claims
Concerns re ‘hired guns’
The dominance of the Medical Agencies and concerns over independence.
No improvement in Return to Work rate
Need for RANZCP Section of Civil Assessment Psychiatry
Video surveillance material is one of the unavoidable dilemmas we have to dealwith as civil assessment psychiatrists. I have been sentthree or more hours of video surveillance. A colleague was asked in court whether or not he had viewed the surveillance at normal speed. I thought his reply was excellent. He said “I viewed the relevant sections at normal speed!”.
For some years I have been advocating for viewing surveillance material with claimants. There was a notorious case more than 10 years ago when a psychiatrist was sent video surveillance material after he had seen the claimant and on the basis of that material changed his opinion without giving the claimant any opportunity to explain. As a result there was an appeal to the Medical Board and the psychiatrist was reprimanded.
Recently, as part of a Medical Panel in Victoria, the other psychiatrist and myself viewed the video material available in the presence of the claimant. She said the person in the video was not her! We agreed with her. Imagine if we had seen the video material in the absence of the claimant. The person in the video was doing many things that the claimant said she was unable to do.
A barrister told me that he had been acting for a man who had been videoed throwing firewood from the back of a truck to someone down below. He denied that he was the man being videoed and said it was his twin brother. The judge insisted he come the next day with his twin brother. He did so and his twin brother testified that it was him on the back of the truck. The workers claim was accepted. The barrister told me that as they were leaving the court the claimant said to him “I’m glad they didn’t ask who was catching the firewood!”
So, what have we learned? Only look at the relevant part of the video material at normal speed and otherwise fast forward. Keep notes of what you are observing. Try and view the video material in the presence of the claimant to ensure the claimant is the person on the video but also because of natural justice, allowing the claimant to explain why they were doing what they were doing.
I gave a PowerPoint talk on this topic on 21 December 2020. I looked at workers’ compensation legislation in Australia (briefly) and focussed on the origins of secondary and non secondary psychiatric impairment, primary and secondary impairment elsewhere except in South Australia where it is pure mental harm and consequential mental harm. I have discussed issues about this vexed topic previously. This is a word version of the talk.
This document has been developed by the Royal Australian and New Zealand College of Psychiatrists (RANZCP) to guide members who are preparing reports in medico-legal and/or forensic contexts. This includes reports based on independent medical examinations, and reports which are prepared for both civil and criminal matters. This guideline establishes a basic standard of practice and outlines the role of the psychiatrist when responding to a referral request for a report, along with best practice in conducting independent medical examinations, report writing and adherence to appropriate professional standards.
SIRA advises the regulated fees for medico-legal services provided in the workers compensation and motor accidents schemes will not be indexed from the 2020 fees.
Any services carried out by medico-legal assessors will therefore continue to be billed at the rates outlined in the tables published in April 2020
The concept of separating out impairment into impairment that is secondary to physical injury and impairment that is not secondary to physical injury was introduced into Victorian legislation in November 1996. It is now almost 24 years later. It seemed timely for me to discuss the history of this development. It is now taken for granted but caused some years of turmoil. It is a concept that has been incorporated into most states and territories. It was developed for only one reason, to prevent a financial blowout and, as I have said previously “it is a medical fiction but a legal fact!”. Whilst doing research for this paper I came across “To Strike a Balance A History of Victoria’s Workers’ Compensation Scheme 1985-2010” by Marianna Styliannou that I have found very helpful. You can read it here. When I have completed this paper I will put it on the website.
The Judicial College of Victoria provides guidance for Judges in Victoria, it describes itself as ‘ a trusted place where the judiciary come to share knowledge, wisdom and expertise.’
The home page provides information about various manuals including a civil procedures book. Interesting information on expert witnesses http://www.judicialcollege.vic.edu.au/eManuals/Civil/index.htm#44187.htm. for example:
The Act gives courts the power to give any direction considered appropriate in respect of experts giving evidence at trial (s65K(1)).
Such directions may include directing an expert witness to:
give evidence at any stage of a trial, including after all factual evidence has been adduced on behalf of all parties
give evidence concurrently with one or more other expert witnesses
give an oral exposition of their opinion on any issue
give their opinion of an opinion given by other expert witnesses
be examined, cross-examined or re-examined in a particular manner or sequence, including by putting to each expert witness, in turn, each issue relevant to one matter or issue at a time
be permitted to ask questions of any other expert witness who is concurrently giving evidence (s65K(2)).
The court may question an expert witness in order to identify the real issues in dispute between two or more expert witnesses. This includes questioning more than one expert witness simultaneously (s65K(3)).
Another resource is a manual on serious injury http://www.judicialcollege.vic.edu.au/eManuals/SIM/index.htm
Check it out.
What, you may ask, is ISCRR, it is the ‘Institute for Safety, Compensation and Recovery Research’. Sounds good, intially a joint venture of the WorkSafe authority, the University of Melbourne and Monash University. For years I had been advocating for a University based organization to do research in this area. Then ISCRR emerged, incidentally you think they could have come up with a catchier tile, eg RRISC but no, even now I have to look it up to see what the initials stand for. The University of Melbourne dumped it last year. I have been uniformly disappointed at the quality of the research and the research topics chosen. The ISCRR newsletter highlights their achievements. here is a sample
Cumulative exposure to trauma at work
Due to the COVID-19 restrictions, the incidence and severity of domestic violence has increased. This has resulted in overwhelming workloads and potential burn-out for frontline counsellors. Repeated exposure to traumatic events in the course of one’s work is known as Work-Related Cumulative Trauma. It’s a risk factor for poor mental health, and domestic violence counsellors are just one of the many affected professions. ISCRR was approached by WorkSafe to conduct two evidence reviews for State Government Departments examining:
The prevalence and impact of vicarious trauma in the workplace
Strategies to address the impact of repeated exposure to work-related trauma, both direct and indirect.
ISCRR identified the workplace-based strategies and interventions that influence the psychosocial work environment, using either a proactive, ameliorative or reactive approach to reducing the risk of exposure to the stressors that lead to cumulative trauma.
That’s it folks, somehow domestic violence became linked in. The researchers tell us that they identified workplace strategies and interventions but don’t tell us what they are or how to access them, why bother? Another waste of paper.
I have written a paper about civil liability claims and psychiatric assessment. Click here to read the document. The paper refers to provisions of the Victorian Wrongs Act but has some applicability to all the civil liability acts in Australia. They have common features.
The difference in Victoria and New South Wales is that claims can only proceed if there is a significant injury. In general significant psychiatric injury in Victoria is injury with an impairment of 10% or more that is not secondary or consequential to physical injury using the GEPIC. Similar provisions apply in New South Wales but the threshold is 15% or more using the PIRS.
Psychiatrists assess three main types of claims. These include falls and trips, childhood sexual abuse claims and medical negligence in all its ramifications. Most claims do not require psychiatrists to comment on liability.
In Victoria and New South Wales psychiatrists are asked to decide whether or not the claimant has reached or exceeded the threshold (thus allowing the claim to proceed) and also comment on the diagnosis and treatment requirements with an estimated cost of these requirements.
Psychiatrists are only asked to comment on liability with regard to issues arising from psychiatric or psychological treatment including psychiatric hospitalisation.
There are particular issues with each of these types of claims that are briefly discussed in the presentation.
It is hard to fathom how devastating Covid 19 has been to the world. I am now working from home and apart from Zoom meetings with colleagues, playing golf weekly and visiting my office I am otherwise at home. It is difficult to grasp how severe and rapid the changes have been for us all meaning all the world.
I have been working from home since late March and have slowly learned to use the new technology. Although I miss the routine of working in the office, going to my city office and to meetings and so forth nevertheless there have been surprising benefits. One of these is that I have found the people I interviewed seem much more relaxed when they are being interviewed remotely in their own home. There have been some odd situations, I was interviewing a woman who had just come off night shift. She was in her studio apartment lying on the bed and fell asleep! Another fellow lived in the country and had to drive to the top of the hill to get a signal so he could talk to me. A young woman was on a bus at the time of the interview and was quite keen for the interview to proceed whilst on the bus with people nearby. Apart from those instances it has otherwise been relatively uneventful although there have been signal dropouts and people having trouble connecting via Zoom.
I have been having more Zoom recently and have become more proficient. I still use FaceTime, Duo and WhatsApp and sometimes Skype. I have had two video conferences using Microsoft Team. Others have praised a number of other remote conferencing technologies but I am satisfied with what I have.
I have purchased an excellent combined camera and microphone for my monitor that is very effective. Since the NBN connection has been made the signal has been generally very good. I have learned to use different backgrounds with Zoom interviews although some of the backgrounds would be regarded as inappropriate, such as the interior of St Peter’s Basilica, a swimming pool and me doing a tango!
I have been having peer-review meetings via Zoom and have been surprised that so many psychiatrists have been working face-to-face during the Covid 19 lockdown. I just did a webinar on The Art of the Expert Witness and I have placed that on the website.
This experience has made me review my practice. I am now considering remotely interviewing claimants who live in the country or interstate rather than them having to go through all the hassle of getting to see me, being interviewed and going home which may take them a day or so. Of course this has to be with the agreement of the referrer.
Although I look forward to a return to “normality”, including overseas travel, this seems unlikely in the short term and I expect that when we get back to normal we will look back on this time with some nostalgia.
Some of the issues raised by the Victorian Ombudsman are dealt with in the NSW fee schedule such as definitions of complexity. i continue to argue that the WorkSafe view that any medico can do IME work with out training in assessment and report writing is fatally flawed. Note that there is an induction process but it assumes competencies in the areas I have mentioned. Also not the fees in NSW and those in Victoria even with a 25% increase in April 2019 (because they could not attract enough psychiatrists to do the work?)
The Report of the Victorian Ombudsman-Worksafe 2: Follow-Up Investigation into the Management of Complex Workers Compensation Claims
This report is a follow-up investigation to the initial report published in 2016 and the further report in 2019. In particular I have focussed on the section entitled:
Oversight of the IME System (page 189)
This section discusses appointments of IMEs, feedback regarding the new selection criteria, quality assurance issues and changes since the 2016 investigation.
I think there is a fundamental lack of understanding by WorkSafe that the skill set required of an IME is additional to the generic skills of medical specialists and general practitioners. The assumption is that without additional training IMEs can perform the tasks required leads to inadequate reports and an apparent vacuum with regard to measures to improve quality.
The assumption made by WorkSafe is that their selection criteria, induction and service standards are adequate. These include:
The successful applicants must then participate in an induction process that includes:
The IME service standards state that reports should:
An adequate course of training should equip prospective IMEs with the skill set to do the work required. Such a training program should include a didactic course, mentoring and the opportunity for further training as required.
The importance of training is both with regard to new IMEs being able to function effectively in that role from the beginning but it also provides an avenue by which IMEs whose reports are thought to be problematic can be provided with further assistance to improve their level of skills.
Many prospective IMEs accept that such a training program would need to be self-funded.
IME work is a subspecialty that would involve generic training and training for particular craft groups..
The RACS does provide IME training but no other medical colleges do so. Most IMEs have to learn” on the job”.
Effective IME raining should include:
No IMEs are required to be trained in doing assessments yet all IMEs are required to attend impairment assessment training. This is a case of the tail wagging the dog.
These comments should be considered in the context of my assessment of Recommendations 13 and 14:
Provide different time allocations for independent medical examinations of injured workers with “complex claims” and remunerate IMEs for these accordingly.
The definition of a complex claim according to this report is:
A claim involving workers who are unable to work long-term and/or require long-term medical treatment.
Many of these involve chronic back problems and/or mental health issues. Psychiatrist IMEs assessed many claimants with the issues described in this definition.
At the moment Item PCT100 is the only item available for a first examination and report by a psychiatrist. This is the standard fee for all reports no matter the degree of complexity. The AMA anticipates a new fee schedule from WorkSafe. However the current fee schedule contains the following instruction:
Loadings additional to examination and report fee are subject to prior written approval from the WorkSafe Agent.
However sometimes complexity does not emerge until the interview is underway. This requirement does not allow for the emergence of complexity during the interview and should not be included in connection with the proposed fee. By contrast the Transport Accident Commission fee schedule allows for a fee range depending on the level of complexity of the claim. The AMA strongly urges that such a fee range be introduced.
In addition to issues with regard to an ability to work long-term and long-term medical treatment complexity is likely to be indicated by the amount of documentation. It is likely that more than 200 pages of documentation indicates that this is probably a complex claim. It is also likely that an interview using the services of an interpreter will extend the interview time significantly. This is not catered for by this fee schedule.
Feedback from IME psychiatrists is that although the fee increase is helpful it remains rigid and the fee level are still below that of most other states. See NSW SIRA WorkCover fee schedules for 2020 and definitions of a complex claim.
Recommendation 14 (page 227)
Provide guidance and/or training to IMEs regarding:
I think that Recommendation 14 should be reworded as follows:
Recommendation 14 (amended)
Accredit suitable training courses in conjunction with the relevant medical colleges.
Current IMEs should be “grandfathered” but encouraged to participate in such courses.
New IMEs should undertake training as part of their induction to become IMEs
Such training courses should provide for retraining for IMEs about whom concerns have been expressed.
Such training courses should have flexibility to respond to particular concerns including:
Surveillance material such as videos should be seen together with the claimant to provide the claimant with an opportunity to explain the behaviour observed and to confirm that the person in the video is the claimant. It is considered that for an IME to change their opinion on the basis of surveillance material without providing the claimant to comment is unfair.
There are other issues in this document that are of concern. The report notes that in paragraph 615:
Worksafe notes that it did undertake significant external consultation including through the IME Clinical Reference Group, a presentation to the AMA WorkCover/TAC committee, the establishment of a working group with representatives from the College of Surgeons and consultation with various medical faculties and peak bodies in relation to the IME criteria.
The AMA WorkCover/TAC committee were told the issue of a minimum of eight hours “direct clinical care each week” would not be discussed and there was a presentation with little discussion and certainly no agreement.
I also have concerns about this requirement as it seemed to ignore that all colleges have compulsory Continuing Professional Development that is required annually for medical practitioners to retain their registration with AHPRA. It is thought that the process of successful completion of CPD annually is a much more effective tool for determining ongoing clinical competence rather than a minimum of eight hours direct clinical care each week as this, in and of itself, does not imply competence.
The ombudsman’s report is a “Follow-Up Investigation into the Management of Complex Workers Compensation Claims”.
Complex workers compensation claims, by definition are – complex!
Complex claims are usually associated with more documentation and an extended interview time. This is particularly the case with regard to complex claims involving alleged mental health issues. See NSW definitions below.
In paragraph 689 WorkSafe wrote:
…in April 2019, WorkSafe increased the fee for psychiatric IMEs by 25% and made other changes to the fee structure such as providing a higher fee if there were more than 20 pages of reading material.
This is the current WorkSafe fee schedule for psychiatrists compare this with the NSW schedule for 2020..
|Item number||Service description||Fee||GST||Total (inc GST)|
|PCT100||First examination and report
– Inclusive of conducting the examination, report writing, reading time and any incidentals (such as postage, photography and faxing services).
– Diagnostic tests (such as x-rays) carried out as a necessary part of the examination are not included in the first examination and report item code and will be reimbursed in accordance with WorkSafe policies, the relevant Medicare Benefit Schedule item code and the WorkSafe’s Reimbursement Rates for Medical Practitioners.
|PCT150||Subsequent examination and report
– Applies where a WorkSafe Agent requests a report within 12 months of the first examination and report for the same claim.
Psychiatrist – Loadings additional to examination and report fee are subject to prior written approval from the WorkSafe Agent.
|Item number||Service description||Fee||GST||Total (inc GST)|
– Flat rate for reading of all reports that accumulatively are greater than 20 pages.
– This fee is payable once only per claim per WorkSafe Agent report request.
– Flat rate for reading of all reports 101 – 200 pages
– This fee is payable once only per claim per WorkSafe Agent report request.
– Flat rate for reading of all reports 201+ pages
– This fee is payable once only per claim per WorkSafe Agent report request.
The NSW definitions and fee schedule for 2020 illustrate the difference in dealing with complexity.
NSW Workplace Injury Management and Workers Compensation (Medical Examinations and Reports Fees) Order 2020
MS008 or WIS008 Examination and report – psychiatric $1,426.40
IMS308 or WIS308 Video examination and report – psychiatric $1,426.40
IMS081 or WIS081 Examination conducted with the assistance of an interpreter and report – psychiatric $1,785.60
IMS381 or WIS381 Video examination conducted with the assistance of an interpreter and report – psychiatric $1,785.60
IMS092 or WIS092 Cancellation with 2 working days notice or less, worker or interpreter fails to attend the scheduled appointment/join the video appointment, or the worker or interpreter attends the appointment/joins the video appointment unreasonably late preventing a full examination being conducted. $408.90
For some time I have been confused by the use and misuse of the term “mental health”.
Most recently the Black Dog Institute has claimed that “almost 4 in 5 participants (of a survey of 5000 people) reported that since the (Covid 19) outbreak their mental health had worsened with over half (55%) saying it had worsened a little, and almost a quarter (23%) saying it had worsened a lot”… “Many people are experiencing high levels of uncertainty about the future (80%), and half reported moderate to extreme loneliness and worry about their financial situation. Given loneliness, social isolation, and financial stress or significant risk factors for mental and physical health, and risk factors for suicidal ideation, these findings are concerning.”
For years we have been told that 20% of the population have serious mental health issues. The notion being more resources should be spent on mental health. My concern is more about the 3% of people with a serious mental illness. This is the group that is severely disadvantaged, this is the group that has difficulty accessing treatment, this is the group that is stigmatised, this is the group that have major problems with quality-of-life. Too often mental health issues are conflated with serious mental illness both overstating the problems and resources required for those with mental health issues and understating the resources required for people with serious mental illness.
Andrew Fleming, the creator of Financial Mindfulness (a private start-up), has produced an app that is said to support the mental health of those in financial stress. He is quoted as saying that as the health threat of Covid 19 dissipates, anxiety over finances will remain potentially worsen. “Now the curve has flattened on new infections, another set of indicators are already in a dangerous upswing that seems certain to cause damaging financial stress long after the viruses sustained spikes in unemployment, mortgage stress, rent arrears, credit card and other debts,” he said…. “Financial stress, from uncertainty and reducing income could be the most serious enduring impacts of the global crisis”. This should be good for his bottom line.
Ian Hickie, Patrick McGorry and the AMA President have issued a joint statement that mental health problems triggered by Covid 19 would claim more lives than the virus itself. “Modelling suggests the pandemic may give rise to 25% more suicides, with up to 30% of those aged 15-25 years.”
Accordingly they call for:
I have been unable to access the modelling discussed in this release.
Interesting studies with regard to suicide include:
Suicide Life Threat Behav. 1992 Summer;22(2):240-54.
The impact of epidemic, war, prohibition and media on suicide: United States, 1910-1920. Wasserman IM1.
The paper utilizes a natural experiment approach to estimate the impact of exogenous social and political events on suicide behavior in the United States between 1910 and 1920. The study is concerned with determining the impact of World War I, the great Influenza Epidemic, and the prohibition experiment on suicide. Estimating the monthly population in the United States registration area from 1910 to 1920, monthly suicide and mortality rates are computed. A time-series model is postulated, and second-order autoregressive estimates are used to determine the impact of the independent variables in the model. It is concluded that World War I did not influence suicide; the Great Influenza Epidemic caused it to increase; and the continuing decline in alcohol consumption between 1910 and 1920 depressed national suicide rates.
Life and death during the Great Depression José A. Tapia Granados and Ana V. Diez Roux
Proceedings of the National Academy of Sciences PNAS October 13, 2009 106 (41) 17290-17295; https://doi.org/10.1073/pnas.0904491106
Recent events highlight the importance of examining the impact of economic downturns on population health. The Great Depression of the 1930s was the most important economic downturn in the U.S. in the twentieth century. We used historical life expectancy and mortality data to examine associations of economic growth with population health for the period 1920–1940. We conducted descriptive analyses of trends and examined associations between annual changes in health indicators and annual changes in economic activity using correlations and regression models. Population health did not decline and indeed generally improved during the 4 years of the Great Depression, 1930–1933, with mortality decreasing for almost all ages, and life expectancy increasing by several years in males, females, whites, and nonwhites. For most age groups, mortality tended to peak during years of strong economic expansion (such as 1923, 1926, 1929, and 1936–1937). In contrast, the recessions of 1921, 1930–1933, and 1938 coincided with declines in mortality and gains in life expectancy. The only exception was suicide mortality which increased during the Great Depression, but accounted for less than 2% of deaths. Correlation and regression analyses confirmed a significant negative effect of economic expansions on health gains. The evolution of population health during the years 1920–1940 confirms the counterintuitive hypothesis that, as in other historical periods and market economies, population health tends to evolve better during recessions than in expansions.(my emphasis)
Ian Hickie is reported as saying that “the most conservative estimate is that at least 10% of lost productivity is due to mental ill-health and suicide. It is likely that the real cost is twice that amount. Not only does the economic downturn because mental ill-health, but that ill-health feedback into long-term loss of productivity”.
It is unclear why he has conflated “mental ill health and suicide”. We know that the suicide rate is between 11-13 people per 100, 000, 3,046 in 2018. As far as productivity is concerned this is a qualitative analysis and I believe it to be dubious.
This seems to be significant over-reach.
The Black Dog Institute report appears to be a blinding glimpse of the obvious. Of course people are worried about their future in this current situation. Of course people are lonely because of the social distancing and isolation, however people have always had concerns about uncertain employment, debt, physical health issues, relationship problems etc.
My concern is our tendency to pathologise normal behaviour with the implication that such behaviour requires intervention, this is not to deny that at times we all need support, advice.
When I worked with kids I found that they fell into 3 groups, those who were made of rubber and coped with adversity, those who are made of putty and were dented but remained intact and those who are made of glass who shattered. This rough demarcation holds true with adults. Most people cope with adversity without needing to see their GP or using mental health services.
My concern is also that mental health researchers tend to be catastrophists, and with the best intentions, use these widespread disruptions as a reason to boost their influence, and not least, their funding.
An example is the push for increased funding for domestic violence services by “researchers” with the expectation that isolation and social distancing will lead to an increase in domestic violence. According to report in the Australian (11 May 2020) “Fewer people in New South Wales are being murdered or reporting assault partner or family members despite strict social distancing measures that experts feared would fuel violence at home. New South Wales Police Force Data shows 2194 domestic violence -related assault recorded in April, compared to 2408 in the same month last year. the number of people killed by intimate partners or a family member plunged by more than 60% in New South Wales to 4 in the year to May 4 compared to 11 over the same period last year.
The same researchers respond by saying “it is possible domestic violence figures had remained stable because isolation and effective her willingness or ability of victim to seek assistance from police. Peak body Women’s Safety NSW said the Covid 19 lock down had contributed to a 10% increase in the number of domestic and family violence victims seeking assistance since March. So there has been a 10% increase in those seeking assistance but a decline of 9.1% in those contacting the Police?
To go back to my concern about the use and misuse of the term “Mental Health”, some clarity came from a paper in the Journal of the World Psychiatric Association entitled:
Toward a New Definition of Mental Health (World Psychiatry. 2015 Jun; 14(2): 231–233)
According to the World Health Organization (WHO), mental health is “a state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community”.
This definition, while representing a substantial progress with respect to moving away from the conceptualization of mental health as a state of absence of mental illness, raises several concerns and lends itself to potential misunderstandings when it identifies positive feelings and positive functioning as key factors for mental health.
In fact, regarding well-being as a key aspect of mental health is difficult to reconcile with the many challenging life situations in which well-being may even be unhealthy: most people would consider as mentally unhealthy an individual experiencing a state of well-being while killing several persons during a war action, and would regard as healthy a person feeling desperate after being fired from his/her job in a situation in which occupational opportunities are scarce.
People in good mental health are often sad, unwell, angry or unhappy, and this is part of a fully lived life for a human being. (my emphasis).
In spite of this, mental health has been often conceptualized as a purely positive affect, marked by feelings of happiness and sense of mastery over the environment.
Concepts used in several papers on mental health include both key aspects of the WHO definition, i.e. positive emotions and positive functioning. Keyes identifies three components of mental health: emotional well-being, psychological well-being and social well-being. Emotional well-being includes happiness, interest in life, and satisfaction; psychological well-being includes liking most parts of one’s own personality, being good at managing the responsibilities of daily life, having good relationships with others, and being satisfied with one’s own life; social well-being refers to positive functioning and involves having something to contribute to society (social contribution), feeling part of a community (social integration), believing that society is becoming a better place for all people (social actualization), and that the way society works makes sense to them (social coherence).
However, such a perspective of mental health, influenced by hedonic and eudaimonic (Eudaimonia, sometimes anglicized as eudaemonia or eudemonia, is a Greek word commonly translated as happiness or welfare; however, “human flourishing or prosperity” and “blessedness” have been proposed as more accurate translations.)
Traditions, which champion positive emotions and excellence in functioning, respectively, risks excluding most adolescents, many of whom are somewhat shy, those who fight against perceived injustice and inequalities or are discouraged from doing so after years of useless efforts, as well as migrants and minorities experiencing rejection and discrimination.
My point being that both the misuse of of the term ‘mental health’ and the catastrophising of well-meaning ‘experts’ with ‘skin in the game’” so to speak. I suspect their modelling vastly overstates the problem and ignores most people’s ability to cope. I am always dubious when mental health services claim to be the solution for social ills such as poverty, poor housing, unmployment and so forth. However, i may be wrong.
The latest issue of Insurance Business Australia highlights the situation. https://www.insurancebusinessmag.com/au/news/breaking-news/businesses-warned-of-rise-in-covid19-workers-compensation-claims-220905.aspx
As the COVID-19 pandemic slowly subsides, the risk of workers’ compensation claims relating to the virus is slowly mounting on the insurance industry.
After a host of workers across the nation lodged workers’ compensation claims related to the virus, industry leaders are being warned to maintain social distancing and strict hygiene measures in their workplaces. Maintaining employees’ psychological health is also encouraged.
“SafeWork NSW advises that simple steps that enable physical distancing between people, effective personal hygiene and cleaning and disinfection of high touch work surfaces can make a significant difference to preventing the transmission of COVID-19,” said SIRA chief executive Carmel Donnelly (pictured above).
This article indicates the number of COVID 19 claims for all the states and territories.
From a psychiatric injury perspective there are likely to be claims for negligence, Impairment benefits should only be a limited area for psychiatric injury as those infected have had a physical injury, but in the event of death or long term health problems family members may make a claim. There maybe a few workers who, while not themselves infected, have de-compensated. An evolving scenario. I am grateful to Dr Julian Parmegiani for bringing this to my attention.
I think the answer is yes. Those of us who were doing this work in the 1990s can remember the explosion of RSI claims. RSI stood for Repetitive Strain Injury and was believed to be caused by overwork.
As an interesting sidenote the first mention of “nervous breakdown” in Australia was in an article in the medical journal in 1915 about “telegraphist’s wrist” that seemed to be the same sort of phenomenon.
RSI became an epidemic sweeping through industry. There were a number of medicos who were actively promoting this notion and recommending such treatment is no use of hands for six months or so.
There was a notorious incident in Melbourne at Yazaki Industries, a company that manufactured electrical looms for cars. Management brought in a public health expert to talk to their staff about how to recognise RSI and how to prevent it. Astonishingly within three months 60% of their staff had gone off work and made workers compensation claims for RSI!
And yet some five years later it had all gone away and I have not seen a claim for RSI for at least 10 years.
So what is the contemporary equivalent? I would suggest it is bullying. There has been an explosion in claims for bullying.
I have no doubt that many of these claims of workplace bullying are legitimate. However, there are some claims that I find problematic.
For example I have seen a number of claimants who have been supervisors, often in aged care facilities and about whom staff members have complained that they have been bullied by her. The claimant has been reprimanded by management and has gone off work alleging bullying!
The other group that can prove difficult after people, usually women in their mid-40s who have had a terrible upbringing with childhood sexual abuse followed by abusive relationships. They became personal care attendants or the equivalent and coped poorly with criticism (and have called bullying), this is understandable as their self-esteem is so precarious however this often leads to people leaving work and making workers compensation claim alleging bullying. This proves to be a disaster as they spiral into depression, more relationship difficulties and eventually become unemployable. The impression I get is that they were already significantly damaged and a very vulnerable and the workplace incident has been “the final straw”.
Of course one of the great difficulties in assessing these claims is that the investigation report claims they were all a big happy family and that the claimant is making it up, or words to that effect.
The other difficulty is that if they cease work after some workplace action their claim may be denied on the basis that there psychological injury is as a result of management actions. To some extent this seems to be a gender issue as I see only a minority-of male claimants alleging bullying. Furthermore the bully is often said to be another female.
Are workplace sexual abuse claims overtaking bullying.
The situation with regard to bullying at school is totally different and I will write about that at another time.
Saji Damodaran and myself are in the process of establishing the Section of Civil Assessment Psychiatry within the college. I invite you to join the WhatApp group
For many years I have been concerned about the lack of training, professional development, accreditation, organised mentoring and the belief of many that the work of civil assessment does not require a special skill set.
In 2013 I organised a training weekend with Nigel Strauss with almost no publicity and was astonished by the positive response. We did another training session but we had concerns that there was no opportunity to accredit training or to provide any follow-up. It was in that context that I extensively researched all the legislation relevant to our work together with looking at other resources and wrote a booklet that was recently expanded and published as The Guide to Civil Psychiatric Assessment.
I had hoped that the Faculty of Forensic Psychiatry would advance this process of training and accreditation but this has not occurred. It took some time for me to realise that the Faculty of Forensic Psychiatry is an unholy alliance between those who do criminal work and those who do civil work and we have almost nothing in common, of course there is some overlap but the Faculty is dominated by those who do the criminal work. Indeed the Faculty conference in Perth in 2016 was on the topic of
Goals, purposes and strategies for prisoner and staff mental wellbeing in custody
Nothing about civil assessment.
The Faculty have an accredited training program regarding criminal justice psychiatry but no training, accredited or otherwise, for psychiatrists who wish to do civil assessments. This training is part of the Fellowship and does not cater to mid career psychiatrists who seek extra expertise to refresh their professional life.
The Faculty of Forensic Psychiatry, until recently, defined forensic psychiatry as that area of psychiatry that dealt with the criminal justice system!
The Faculty is dominated by psychiatrists who work in the criminal justice system, most are public-sector employees and some working University departments of Forensic Psychiatry. It is understandable that their prime interest is criminal justice psychiatry. At the meeting Sydney in 2018 the director of training in NSW told me that in no circumstances would training be offered to psychiatrist interested in doing civil work, my response was on the lines of ‘be fruitful and multiply – off’
However this reflects a broader view both in the College and in various schemes that any qualified psychiatrist can do this work. I believe that this work requires a particular skill set that not all possess, we have psrticular issues that no-one else either understands or cares about.
I was asked to talk about our discipline at a meeting of our Melbourne MedicoLegal group and from that meeting the idea of a new section emerged. The RANZCP are developing new criteria for sections so there may be some delay before we are ‘official’ but there has been widespread interest in NSW, Victoria, Queensland and I hope in the other states and territories, not sure about New Zealand. I will keep you informed
Have a look at the WhatsApp forum and join in the discussion.
Most of us have had little experience of doing interviews remotely. The present situation is potentially dangerous for us, our staff and the claimants. Despite distancing, hygiene, warnings about not coming if unwell nevertheless, there is a risk. Fortunately we work in an area of medicine where hands-on assessment is not required.
Last week I made the decision for my safety, the safety of my staff and the claimants to do interviews remotely. The obvious choices are Skype, Zoom and even Covius, the latter two require a subscription. Zoom is free for 40 minutes. We have worked hard to encourage claimants to participate in remote interviews. The drawbacks for some claimants have been lack of access to a PC, their PC does not have a camera, patchy Internet access, fear about using technology and, surprisingly, some not only do not have a computer but do not have a mobile phone.
There was a recent article about Zoom in the Australian Financial Review:
The Trouble with Zoom
Zoom has suffered from several critical security vulnerabilities, ranging from allowing hackers into private calls uninvited, to allowing Mac users to be forced into calls without their knowledge. While such vulnerabilities were patched, Zoom’s approach to these concerns has been rather blase. In the latter case especially, Zoom essentially refused to change fundamentally flawed security practices.
Given the sensitivity of the data Zoom handles such an attitude doesn’t inspire too much confidence.
Far from simply providing a meeting platform, Zoom actively collects large amounts of data in order to analyse its own service, and to provide business customers with some powerful features and tools that may be easily abused. These include video and audio recordings, audio-to-text transcriptions, detailed network information, advertising IDs and even detailed and intrusive monitoring of what is on the screen of meeting attendees.
Zoom’s collection of much of this information without first seeking the consent of attendees, or properly informing them of what information is being recorded just increases these concerns.
By collecting such data without engaging its users, or indeed notifying those who use it without signing up, Zoom destroys any chance of consent and individual control over personal information.
For claimants with only a mobile phone there is FaceTime for iPhones or its equivalent Duo for Android phones (it works with iPhones too).. FaceTime cannot be used with a PC but I can use it with my iPad. People feel more comfortable using their phone. I have downloaded Google Duo on my iPhone and iPad so I can communicate with people using an android phone or tablet. This seems to work well.
My general impression is that most people find it much easier to use FaceTime or Duo rather than using Skype, Zoom and so forth.
The procedure we have developed has been:
Contact claimants days before the scheduled interview to participate in a remote interview. Give options: Skype/FaceTime/WhatsApp and talk through any issues.
Send information sheet:
Reasons for video interview
Procedure for connecting
(what to do if there is a problem)
approximate time of interview (about 2 hours)
be available shortly before the interview time in case you need to be notified of any delays
allow for a delay so free up at least 3 hours
toilet before the time
have water and tissues
talk in quiet area, preferably away from others
record your weight and height
have available your documentation
current treatment including:
names and location of treaters
type and frequency of treatment
medication list including names and dosage
If using a mobile phone keep it on charge.
After two weeks of using video technology I have found that the easiest procedure is using FaceTime (Duo with an android phone). On several occasions the Skype connection has been inadequate and we have resorted to using FaceTime. I have been using FaceTime on my iPad and this works well. In some ways the interview has been easier as claimants appear more relaxed in their own home. There is also an intimacy that develops because we’re talking face-to-face and this facilitates the interview process.
I am giving serious thought to continuing to do remote interviews especially for people living in the country or interstate when this current crisis is over.
I have rewritten a paper I presented at the faculty of forensic psychiatry conference in Singapore last year. Whilst I was researching my book (still available at a reduced rate) I came to realise how widespread was the discrimination against people with psychological injury. I was fascinated and frustrated by the virtue signalling of governments promising the world that they would battle against mental health issues and yet, at the same time, the extent to which governments at all levels discriminate against people with psychological injury. I was also fascinated by the ready acceptance of spurious data in supporting various opinions. Common issues include preventing people with psychological injuries arising as a result of management decisions receiving benefits, preventing people with a psychological injury arising from a physical injury receiving benefits (although almost the reverse applies in New Zealand) and the different thresholds for physical as opposed to psychiatric injury. Some of these changes have no rationale at all. It makes financial sense for the bean counters to only count pure mental harm (a.k.a. primary psychiatric impairment a.k.a. impairment not secondary to physical injury) if impairments from physical and psychological injuries are combined. It makes no sense at all if they are not combined!
I have edited this report for IMEs, especially IMEs. The report looks at the response of WorkSafe to the 2016 report. This report has a wider focus than IMEs but I have edited it to look at that section. I have included all the recommendations.
The report is scathing about some IME reports and the response of WorkSafe and Agents to complaints about reports. A number of recommendations were made including providing a fee for complex claims, training re aspects of opinions such as work capacity etc. However, as I have written in my draft response it fails to recommend comprehensive training for IMEs.
CIVIL FORENSIC PSYCHIATRY-WHITHER OR WITHER?
Civil forensic psychiatry (CFP) is at a crossroads. Either we push for recognition of our work as a subspecialty within psychiatry or the status quo continues with covert and sometimes overt contempt for our choice of work and the further loss of any distinctive professional identity.
This talk is intended to give you my perspective of the current situation. I will highlight particular concerns and suggest some remedies.
In my experience all psychiatrists who do this work have learned by trial and error and have had no formal training. We have had to develop a specific skill set to work in multiple arenas..
OUR FIELDS OF OPERATION
Why do we do this work? I can only answer for myself. I like the lack of clinical responsibility. I like hearing stories. I like the detective work of teasing out what has happened. I like the process of compiling an opinion that is based on the data, that is defensible and that is fair. I am comfortable as a witness and this seems to suit my temperament.
The downsides are:
For example the requirement of WorkSafe that IMEs must perform 8 hours of clinical work a week in their field of specialty. This diktat ignores the fact that all colleges require compulsory CPD. This is a much greater indication of competence than eight hours of clinical work!
An enduring problem is the response of our peers to what we do.
We are the subject of negative views or comments from our peers, from benevolent schemes with regard to our motivation, our integrity and the perception that “you guys are just in it for the money!” as has been said to me. I have also been challenged in court by barristers asking questions like “you’re just a hired gun aren’t you doctor?”
In large part this disdain comes from the view that we have sold out for the dollar. We are perceived to have abandoned our clinical responsibilities.
In my view this is a reflection of the lack of understanding of the work we do and the specific skill set required to do the work. I am proud of the work I do and I believe it requires as much clinical knowledge, professionalism and integrity as any other subspecialty. Indeed, the problem is that others do not recognise or acknowledge that we are a subspecialty. We do not have a recognisable entity that speaks for us and advocates for us.
PROBLEMS GETTING STARTED
Many commence doing the work but find the lack of any training makes it too difficult. They find it too demanding of time and energy and the financial remuneration is vastly overstated considering the time involved. Some also find the possibility of being an expert witness very daunting and move to other areas of practice.
I have noticed a definite pattern over the years. WorkSafe and the TAC become frustrated with the relatively small number of psychiatrists who are IMEs and open up the system only to find that the new entrants are unskilled and cause more difficulty. They leave the system and WorkSafe and the TAC revert to using the small group who were there originally. This situation ebbs and flows as regularly as the moon.
A READY TARGET
Complaints against civil forensic psychiatrists are frequent and distressing to all those practitioners involved. We are ready targets when claimants disagree with our opinion. One has to only look at various websites to see the vitriol expressed about our colleagues and sometimes ourselves. The usual complaints are that we were late, rude, insensitive, we didn’t listen, we saw claimants for only 20 minutes or so, our reports were inaccurate, biased and our opinions were inconsistent with the body of the report.
We have seen that unfounded complaints to the Medical Board lead to so-called peer reviews that are time-consuming and a negative experience.
OUR OWN WORST ENEMIES
All too often I see reports that appear biased. I see reports that are predictable, one particular psychiatrist almost invariably writes “there is no diagnosable psychiatric disorder”.
Recently I came across a psychiatric supplementary report. The psychiatrist had diagnosed post traumatic stress disorder secondary to an industrial accident in which a truck had fallen on its side trapping the driver for some hours and he had sustained a right shoulder injury. Oddly, the psychiatrist considered that the right shoulder injury had partially contributed to the post-traumatic stress disorder!
The psychiatrist had been sent a report from an occupational physician whose opinion was that the right shoulder injury had resolved. The psychiatrist then wrote the following:
I conclude that the claimant’s psychiatric injury is now not materially contributed to by the accident because the psychiatric injury (the post-traumatic stress disorder) was always secondary to physical injury, and if the physical injury has resolved then the psychiatric injury cannot be related to work.
Ombudsman’s report Dec 2019 – WorkSafe management of complex claims
This is a recent report of the Victorian Ombudsman (December 2019). One section is entitled “Oversight of the IME System”. This section commented on:
The report focused on one IME, described as IME Y. This IME is not a psychiatrist, excerpts were provided from three of this IMEs reports to illustrate concerns.
The report then referred to complaints about IMEs and the lack of clarity of WorkSafe in dealing with these complaints. Excerpts were provided from eight reports of which seven were written by psychiatric IMEs. The concerns expressed included:
I have written a response to this report. In particular I considered that the matters referred to suggested a lack of appropriate training rather than deliberate bias and recommended a training program with a didactic component, mentorship and the ability to have supplementary retraining particularly if there have been any concerns expressed about the IME.
In short I noted the following:
THE COHORT OF CIVIL FORENSIC PSYCHIATRISTS
There are small groups of psychiatrists in Sydney, Melbourne, Brisbane, Adelaide, Hobart, Perth and Darwin who do the bulk of this work. Most of them do a good job, taking an adequate history, providing a defensible opinion that is consistent with the data and is written without prejudice or bias.
I think I do a good job, I believe I behave in an ethical manner and the reports I write are comprehensive and fair. However, I am now reaching the end of my professional life and I am concerned about those who come after me. How will they be trained? How will they be acknowledged? What support will they receive from the College?
Because of my concerns about the lack of training and because of the inability to source appropriate material that we should be able to have ready access to I decided, in collaboration with Nigel Strauss to develop and implement a training program.
In preparation for the first weekend training session in 2013 I did a good deal of research including editing all the legislation in Australia with regard to workers compensation, motor accidents and personal liability claims together with fee schedules, judges comments about psychiatric evidence amongst other material.
We held the weekend workshop in 2013, despite almost no publicity we had a full house with people coming from as far away as Western Australia and Darwin.
I decided that the material I compiled should not be lost and this led me to establishing the website www.civilforensics.com.au.
I prepared a short book as a sort of primer and decided to charge a fee to join the website to exclude trolls. Since then I have been updating the website by adding resources, publications of interest and I have been writing a blog linked to other material.
Subsequently Nigel and I ran another training session with a similar result. Obviously people who had gone through the training session did not have any formal qualifications arising from it.
In 2018 I was asked to establish a civil forensic psychiatry component to the training course at Swinburne University and with the help of several colleagues, some around this table, we put together a comprehensive outline of such a course. However, nothing happened!
I became concerned that the book I had prepared was both too sketchy, too Victorian orientated and missed out on several important areas of practice. I totally rewrote the book for an Australian and New Zealand audience and the resulting book “The Guide to Civil Psychiatric Assessment” was published in October 2019, it is available from me and also on Amazon.
Dr Jonathan Phillips, a former president of the College and a very experienced forensic psychiatrist reviewed the book and wrote:
This book is a must for young psychiatrists with an interest in forensic matters, and also for mature practitioners of various backgrounds.
Michael Epstein is a vastly experienced psychiatrist, with a long interest in the civil aspects of forensic psychiatry.
He speaks in a simple and engaging way to you the reader, and covers all aspects of civil psychiatric assessment. The work is practical, to the point, up to the moment, and easy to follow.
Michael Epstein has high skills as an educator. He has a wealth of material for every reader.
I strongly recommend the text to you. It will enhance your library.
Dr Nathan Serry, a member of our group also reviewed the book and wrote:
An overdue and valuable resource for all psychiatrists
who undertake civil forensic assessments.
I mention this because although I have run courses and have written a book I have no standing other than being one of you. I believe more is required.
RESEARCH IN OUR FIELD
There is a good deal of research in the areas described above, particularly with regard to workers compensation and transport accident claims. However none of this work appears to have come from any department of psychiatry! The following paper was written by legal academics.
Understanding independent medical assessments – a multi-jurisdictional analysis Environmental Scan
This review examined how compensation bodies use medical assessments including their processes and policy, procurement models and quality assurance. The medical assessment process varies widely among jurisdictions and each approach has its merits and drawbacks. The review identified a number of practices that may improve aspects of the medical assessment process. The review recommended future research directions with the intention to improve medical assessments for compensation bodies, clients and healthcare professionals.
One study: ‘The Cost of Comorbidity to the Transport Accident Commission Compensation Scheme’ noted that pre-injury mental health service use was associated with increased TAC cost. Other co-morbid factors that increased cost included diabetes, cardiovascular disease, previous surgery in the year before the accident and previous back pain.
Another paper on ‘The Health Effects of Compensation Systems (HECS) Study’ investigated the relationship between stressful claims experiences and long-term recovery after injury among transport accident and workers’ compensation claimants.
The most frequently-reported stressors were
Claimants who reported high levels of claim-related stress were at heightened risk of poor long-term recovery (with higher levels of anxiety, depression and disability).
This type of research is important but here are other areas about which we have particular concerns.
DO WE GROW OR WITHER?
I have a number of concerns about our future.
SEXUAL ABUSE CLAIMS
Sexual abuse claimants requiring assessment have become like a tsunami after the recent royal commission and other investigations.
Most of us find these claims difficult because:
As a result, most psychiatrists limit the number of assessment regarding sexual abuse claims to 2-3 per week and some to only two a month. There are only a small number of female psychiatrists who are prepared to do this work.
I have concerns that if psychiatrists do not meet the need for assessments of these claimants then psychologist may be enlisted with the possibility of a significant reduction in standards.
There has been an increased tendency for IMEs to do work for medical agencies. There is a subtle pressure from these medical agencies to write reports that are most likely to please their major customers that are the benevolent schemes such as WorkSafe. I am not implying that psychiatrists who work for agencies are biased, I am stating that the key performance indicators of these agencies are not necessarily compatible with our independence.
Many IMEs like this work because they avoid all the pressures of providing supplementary services, office space, clinical responsibility and often have an opportunity to travel interstate.
The downside of that is that we have seen the encroachment of psychiatrists from interstate, often assessing claimants in jurisdictions about which they have little knowledge or expertise. In my view this diminishes the quality of their reports.
The agencies do very well but the IMEs receive a relatively small portion of the fee in return for regular appointments, transcription services and accounting. This tendency to become a contractor to an agency makes us functionaries in a larger system, akin to the role of many general practitioners in large medical clinics. I believe this will have a detrimental effect on our independence and credibility.
THE FACULTY OF FORENSIC PSYCHIATRY
For some years some of us have advocated for a Faculty of Forensic Psychiatry. This has proven to be a mistake. The faculty has brought together psychiatrists who work in the criminal justice system with those of us who do civil forensic psychiatry. We have nothing in common. The psychiatrist who work in the criminal justice system are doing clinical work with a particular population group characterised by drug dependence, alcohol abuse, childhood abuse, personality disorders and violence. Civil forensic psychiatry deals with a quite different population. Psychiatrists who have been in normal clinical practice for some years are, in my view, much better equipped to do the work of a civil forensic psychiatrist than those who work in the criminal justice system.
The upshot is that the faculty has been dominated by psychiatrists working in the criminal justice system and civil forensic psychiatry is regarded as the poor cousin. We have no one to advocate for us in various fora.
My concerns about the Faculty were encompassed by a letter I wrote to the head of the Faculty and the President of the College in December 2018. I have received three or four emails from the head of the faculty but no response from the College President.
In that letter I referred to:
A questionnaire was distributed and the definition has been changed but nothing has happened apart from a change in the definition.. The definition of forensic psychiatry is now
Forensic psychiatry is the subspecialty of psychiatry which interfaces with the law.
I have attended the last three forensic faculty conferences and have been dismayed by the small number of presentations relevant to my area and, as a consequence, the small number of civil forensic psychiatrists to attend these conferences. Heaping insult on injury, the conference in Perth was only about criminal justice psychiatry.
CONTINUING PROFESSIONAL DEVELOPMENT¶
I have mixed views about the demand that we must all do CPD annually to retain our registration according to AHPRA but nevertheless this is a reality. My concern is that the CPD process for those of us who do this work is grossly inadequate. It does not seem to reflect the work that we do. It has been developed by the Faculty of Forensic Psychiatry with some limited input from civil forensic psychiatrists.
On 8 February, 2018 I received the following unsolicited email
I just wanted to pass on my thanks to Dr Epstein for his consistently thorough report histories and opinions. I am currently reviewing the matter of (yyyyyyyy) and once again Dr Epstein has provided a really comprehensive report of high quality. Every time I read one of his reports I know I am getting an informed decision regarding a client’s entitlements. If you could pass on my thanks for his consistent professionalism and high quality reports that would be appreciated.
Senior Injury Coordinator
Senior Injury Team
Transport Accident Commission
I submitted this to the CPD program. It was rejected as it did not meet the criteria!
The lack of training and accreditation and the lack of recognition by the college of this subspecialty has led to problems with recruitment, especially recruitment of women.
When confronted with voluminous documentation, and unwilling interviewee, the demands to provide a timely report with an opinion that may be challenged in court and the prospect of being a witness in court, it is not surprising that a number of psychiatrists look for other areas of practice.
I believe we need a fully accredited training program for psychiatrists who do this work. There is a paucity of training provided by the College for midcareer psychiatrists who are looking to continue in their practice but would like to take on other areas of practice. This is particularly so for those who want to do civil forensic work.
The training program should include a didactic component, mentorship including an opportunity to have reports reviewed informally and the means by which concerns about performance can be addressed.
Those who already do this work should be grandfathered but new entrants should be required to complete a training program.
We also need to facilitate peer review groups to share concerns about issues and to provide support when problems arise such as complaints to AHPRA.
I believe organised training is unlikely to occur within the Faculty of Forensic Psychiatry for the reasons I mentioned above.
I believe that we need to establish a Special Interest Group including psychiatrists in a majority of the other states (a college requirement) and we should be provided with funding by the College to meet and plan a program. Furthermore money paid by us to the Faculty of Forensic Psychiatry should be directed to this Special Interest Group that could be part of the faculty but may have to stand alone.
The Special Interest Group should:
We need to acknowledge that we have a unique skill set, over and above what is required in clinical practice. We need to recognise that this unique skill set entitles us to be regarded as a sub-specialty.
As a sub-speciality we must:
How do we bring this about?
The Faculty of Forensic Psychiatry has been unresponsive to all of these concerns.
We need to develop a Special Interest Group that is either part of the faculty of forensic psychiatrists or separate from it (my preference).
The Civil Forensic Psychiatry Special Interest Group) would provide a formal structure to advocate and implement these ideas.
The status quo continues leading to: