The draft report from the Productivity Commission is a comprehensive overview of mental health issues in Australia. I have selected some sections relevant to civil psychiatry. However first a few general comments.
• In any year, approximately one in five Australians experiences mental ill-health. While most people manage their health themselves, many who do seek treatment are not receiving the level of care necessary. As a result, too many people suffer additional preventable physical and mental distress, relationship breakdown, stigma, and loss of life satisfaction and opportunities.
• The treatment of mental illness has been tacked on to a health system that has been largely designed around the characteristics of physical illness. But in contrast to many physical health conditions mental illness tends to first emerge in younger people (75% of those who develop mental illness, first experience mental ill-health before the age of 25 years) raising the importance of identifying risk factors and treating illness early where possible.
In these 2 paragraphs it is unclear as to whether or not mental ill-health and mental illness are the same. Are the statistics in the second paragraph relevant to the first paragraph?
The result is equivalent to a report discussing prevention, treatment and social support options for all physical illness without clarifying what conditions are being discussed. In other words, by taking mental ill-health (their term) as an entity it misses out on the syndromal issues regarding different causation,symptoms, effects of symptoms and appropriate direct and other care.
2. The costing ranges from accurate (2018-2019 Commonwealth expenditure on mental health care – $3.6bn ) to a questimate (The annual cost of informal care provided by family and friends). The basis of this and other such estimates are discussed in an appendix but are impossible to obtain with any accuracy, nevertheless it and other estimates are placed side by side with much more accurate figures. In my view this is misleading. This figure is also said to be a conservative estimate!
3. The section on work and mental health is all encompassing. However it does not explore the complex psycho-socio-medical milieu of many mental health claims. Those of us who do the work of assessing claimants know of these issues and are aware that relationship issues are usually paramount, no matter the listed cause of the psychological injury.
I was pleased to see it picked up on the discrimination against claimants with work related psychological injuries in accessing benefits.
here are a few excerpts:
Table 1 Estimated cost of mental ill-health and suicide 2018-19
Cost category $ billion per year
Australian Government expenditure
healthcare (includes prevention) 3.6
other portfolios (eg. employment, psychosocial support) 1.3
State and Territory Government expenditure
healthcare (includes prevention) 6.9
other portfolios (eg. education, housing, justice) 4.4
Individual out-of-pocket expenses 0.7
Insurer payments for healthcare 1.0
Informal care provided by family and friends 15.0
Loss of productivity and reduced participation 9.9-18.1
Cost to economy (excluding the cost of diminished health and wellbeing) 43-51
Cost of diminished wellbeing (for those living with mental ill-health or self-inflicted injuries, and/or dying prematurely, including those who die by suicide) 130
Other costs that overlap with (and cannot be added to) the above
Costs to the economy of suicide and suicide attempts (excludes the costs of pain and suffering of the individual and their family and friends) 16-34
Income support payments for those with mental ill-health and carers 9.7
• Cost to the Australian economy of mental ill-health and suicide
– $43 to $51 billion per year
Including State and Commonwealth costs re healthcare, education, housing and justice-insurer payments healthcare-informal care family/friends/ loss of productivity
• Plus approximately $130bn per year associated with reduced health and life expectancy
TOTAL COST $173bn – $181bn
Productivity Commission modelled the cost of forgone output due to mental ill health $9.9 billion – $18.1 billion in 2018-19 (does not include absenteeism cost)
Provisional liability and interim payments
Some workers compensation schemes provide support for all workers compensation claims — not just mental health related claims — prior to liability being determined: the New South Wales scheme refers to these arrangements as provisional liability, South Australia as interim payments and the Tasmanian scheme as ‘without prejudice’ payments (table 19.2).
Under these arrangements, the injured worker is assumed to be entitled to benefits (including for the loss of income), and is supported on the basis of this assumption, unless and until a decision on liability is made to the contrary. These arrangements provide for the payment of benefits (for a specified period) and medical expenses (typically to a specified amount) before a decision is made on liability under the relevant legislation. For example, the Tasmanian scheme makes ‘without prejudice payments’ for limited medical expenses up to the value of $5000 and the New South Wales scheme meets medical expenses of up to $7500 under provisional liability. This can reduce delays for an injured worker in gaining access to the appropriate medical attention and income and reduce other potential stressors while the decision of liability is being determined. However, where a final determination is made to deny the claim any payments made are recoverable as a debt in South Australia whereas in New South Wales and Tasmania the insurer is not able to recoup these payments.
Productivity Commission Recommendations
These recommendations, especially 1 and 2 are already being done but the return to work rate for people with work related psychiatric injury has not changed for more than 10 years.
The 3rd recommendation is problematic, who will pay and why is this limited to people with mental health problems?
I commend the draft report to you for whiling away a pleasant Sunday afternoon.
I presented a paper on work trauma at a conference in August 2019. While writing the paper I was struck by the lack of any correlation between statistics compiled by SafeWork Australia and reports from the Australian Bureau of Statistics about the prevalence of mental health issues in Australia. The workers compensation statistics also do not ignore knowledge the issue of comorbidity. Of course it is a difficult task but nevertheless a significant number of workers develop mental health issues unrelated to their employment. It seems impossible to capture this overlap. You may be interested to read the paper. It can be found here
On 26 October 2018 I wrote “A Farce-The Faculty of Forensic Psychiatry” and sent a strongly worded document to the faculty criticising the lack of interest and resources given to those of us who did civil work. It is now a year later, what has been done? The definition on the College page has been changed, a questionnaire, most of which I wrote, was circulated and….that’s it!
I am presenting at the Faculty joint meeting in Singapore in early November. One of my complaints was the lack of space given to civil forensic work at conferences. So, out of the almost 60 papers how many are in this area? I counted 6.
Maybe, as some have urged me, it is time to move on, this Faculty is not making me feel welcome.
After two years of research and writing, editing, rewriting and more research I have at last completed my book The Guide to Civil Psychiatric Assessment. I wrote a much briefer version of this in 2013 called the DIY Guide to Civil Forensic Psychiatry. Some of the material from that has been included but much of it was outdated, a number of areas hadnot been covered and it was very Victorian focused.
The new book is intended to be a complete guide and is in two parts. The first part is “how to” with advice about establishing a practice, obtaining the work, interviewing, report writing and preparing an opinion. I have written extensively about complex claims, difficult claimants and court appearances. The second part refers to all the resources available including various websites. The book has links to legislation about workers compensation, motor accidents and civil liability claims in every state and territory and in New Zealand. I have also looked at all the impairment guides.There is an appendix that includes information about the impairment guides, various college statements plus other documentation.
The book is available through this website but also through Amazon and, if you have any problems you can contact me at email@example.com.
I have been doing more research on the issue of widespread discrimination against claimants with psychiatric injury. I came across this paper, written by a lawyer that gives an interesting overview of the dilemma facing governments in dealing with these claims.
The writer states:
The main arguments against pure psychiatric injury claims can be summarised as follows:
1. The existence of mental harm is more difficult to prove than physical harm, and carries with it the associated risk of trivial and/or fraudulent claims. This is coupled with the traditional medical and cultural notions of extreme psychiatric response being hysterical and irrational, and so less worthy of compensation than physical injury.
2. Because psychological injury can afflict people beyond the range of physical effects of negligence, there is potential for a vast class of claimants arising from the one negligent act (that is, opening the floodgates).
3. Following on from (2) above, the imposition of liability in such cases burden the defendant with liability out of proportion to the negligence alleged, and thus produce iniquitous outcomes. Further, the fear of liability may inhibit normal and desirable societal activities and interactions.
I came across this publication on the SafeWork Australia website. I am preparing 2 talks at the moment, one on Work trauma and Work ‘stress’ and the other on discrimination against injured workers and motor accident claimants with psychiatric injuries. I have been disappointed by the quality of some of the published material, this seems OK however.
I have complained to the Faculty of Forensic Psychiatry about the marginalization of civil forensic psychiatrists (see report). Justin Barry-Walsh, the chair has been very responsive. The definition on the College website has been changed. Forensic psychiatry is the subspecialty of psychiatry which interfaces with the law. ( It did read – Forensic psychiatry is a psychiatric subspecialty relating to the law and the assessment of mental health in the criminal justice system). A survey of all the members of the faculty will shortly take place to understand the numbers of people involved, the scope of the work and what will be required in the future regarding conferences,training etc.
For some time I have been interested in the various tactics used by governments to reduce the number of mental health claims in workers compensation and motor accident schemes. It is ironic that there is so much focus now on preventing discrimination against people with mental health problems, including, in Victoria, a Minister for Mental Health but, at the same time, there is fear and trembling that people with mental health injuries arising from work or motor accident will send the state bankrupt. In South Australia, for example an impairment benefit can only be paid for a person with “pure mental harm”, a person with a physical injury has to meet the threshold of 5% impairment for it to be considered a serious injury and to then receive a lump sum payment. A worker with a mental injury has to reach the threshold of 30% impairment and there is no lump sum payment!
I have found a table listing the exclusionary provisions for people with work-related mental health conditions in the states, territories and in New Zealand. It makes for interesting reading.
It is interesting to note that this is an international phenomena. For example the Purple Heart, awarded in the United States for injuries received in various circumstances is not awarded for people suffering from post traumatic stress disorder or from battle fatigue!
Henry Chen has written an informative guide about concurrent evidence in New South Wales that has applicability to other jurisdictions. In Victoria concurrent evidence appears to have had a limited effect although of course it is permitted as a court procedure. Concurrent evidence also is a procedure in the Administrative Appeals Tribunal. It does appear however that Sydney Is the hot tubbing centre of Australia!
Bob Adler, a very experienced child psychiatrist is running a 2 day workshop in late August for those interested in learning more about Family Court work including writing reports. He will be assisted by Professor Mushin, a retired Family Court judge. This will be a very valuable training experience.
We were all surprised when worksafe produced a new fee schedule as of 1 April, 2019. We had complained for years about the poor remuneration compared with other jurisdictions and the failure to respond to our concerns. There were ridiculous fees like being paid little over $40 for reading documentation. Out of the blue a new fee schedule for psychiatrists was sent to IMEs in April 2019. I suspect this is because IMEs have been leaving in droves and worksafe have recognised that there is less and less incentive to be involved in the system, not only because of the poor fee structure but also because of the bureaucracy, the sudden cancellation of appointments, the inadequate time to review paperwork and the resultant strained relationship. It will be interesting to see what happens to the retention of IMEs.
The Canberra Times (5 April 2019) reported that Canberrans injured in a motor vehicle accident will not be able to claim any insurance for anxiety or depression caused by the crash, under proposed changes to the compulsory insurance scheme.
The Barr government Motor Accident Injury Bill passed in principle on Thursday, with the details to be debated when the Assembly resumes sitting next month.
The ACT government is ditching its common-law compulsory third party insurance scheme in favour of a hybrid, no-fault model. But there are significant concerns about some of the exclusions proposed. Photo: Rohan Thomson
But the ACT Law Society and ACT Bar Association have written to all parliamentarians highlighting fundamental problems with the proposed scheme.
Claimants will have choose between getting compensation for pyschological or physical injuries, meaning they cannot combine the physical and psychological injuries they suffer from the accident.
Their insurer only has to pay for one whole person impairment assessment as well, so if the injured person wants to be assessed for both physical and psychological injuries, they will have to foot the bill.
The definition of psychological injury also excludes psychiatric disorders such as depression and anxiety, meaning people can only get compensation for conditions like post-traumatic stress disorder or “mental shocks”.
In a speech that drew heavily from the Law Society and Bar Association letter, Canberra Liberals leader Alistair Coe described the exclusions as “appalling”.
“I cannot overstate the effect these changes would have,” Mr Coe said.
“The government has not addressed the significant issues raised by stakeholders and the Assembly inquiry. The Canberra Liberals believe Canberrans should continue to have access to a comprehensive CTP scheme that supports the rights of motor vehicle accident victims.”
The Law Society and Bar Association also said provisions that would allow children still getting treatment for their injuries four and a half years after their accident to pursue more benefits were easily circumvented.
“There is nothing to stop an insurer ceasing treatment and care after four years and five months and effectively avoiding the automatic consequences,” they said.
However Chief Minister Andrew Barr said insurers could lose their licence if they did not follow the rules set out in the scheme which state they must provide people with reasonable access to treatment and care.
“Now of course there is no such thing as a perfect accident insurance scheme and as we’ve said from the start of this reform project, we’re aiming to deliver a scheme that best reflects the prioirties and the values of this community,” Mr Barr said.
“We have been upfront in acknowledging there will always be trade-offs and competing views when emarking on an overhaul this significant.”
Mr Barr said of the 1500 people injured a year on Canberra’s roads, only about 900 could access the existing, fault-based system.
“The changes we are making would mean around 600 more Canberrans would be covered,” Mr Barr said.
However Mr Coe said this was only achieved by slashing the rights of not-at-fault drivers.
“Quality of life payments would be cut by 80 per cent. There’d be a 31 per cent reduction in loss of earning compensation, a 26 per cent decrease in care costs and reimbursement of private medical costs and public hosptial costs would drop 17 per cent and 6 per cent respectively,” Mr Coe said.
A web-site called ExpertsDirect an agency for expert witnesses of all types has a good deal of information on its website relevant to expert witnesses. I have included in the Publications section 2 articles. One is on Expert Witness bias and the other on lawyers editing Expert Witness reports.
The website is https://www.expertsdirect.com.au/blog
The issue of the relationship between psychosis and injury has always been difficult for psychiatrists to resolve. In general, my own view is that if there is a very close temporal relationship between the injury and the psychosis there could well be a relationship. Complications include premorbid symptoms, cannabis use after the injury and a previous history of psychosis. The matter is a little clearer with regard to traumatic brain injury.
The research literature in relation to psychosis following traumatic brain injury reveals that there is a causal link between the two. Some of the significant findings are:
Batty, R., et al. (2013). Psychosis Following Traumatic Brain Injury. Brain Impairment. 14, 21-41
Fujii, D and Fujii, D. (2012). Psychotic Disorder due to Traumatic Brain Injury: Analysis of Case Studies in the Literature. The Journal of Neuropsychiatry and Clinical Neurosciences.24, 278-289.
Is Traumatic Brain Injury A Risk Factor for Schizophrenia? A Meta-Analysis of Case-Controlled Population-Based Studies: Schizophr Bull. 2011 Nov; 37(6): 1104–1110.
The TAC has provided us with the results of a new study.
Before I tell you about the study I want you to guess the answer to this question.
Do a person’s previous health issues (especially involving mental illness or drug or alcohol use) reduce their chances of a good recovery from an accident? If you answered yes you are on the money. Here is another blinding glimpse of the obvious.
This new study has shown how pre-accident health can impact a person’s recovery from a transport accident. By linking pre- and post-accident data, researchers at the Monash University Accident Research Centre have revealed fascinating insights into the factors that contribute to a person’s recovery.
Led by Dr Janneke Berecki-Gisolf and Dr Trevor Allen, the project looked at TAC clients’ physical and mental health service use and health service needs before and after their transport accident.
“A better understanding of what’s going on with someone’s health before the crash [will] help to understand why some people recover more quickly than others,” said Dr Berecki-Gisolf. “So to find out about someone’s health before the crash, rather than ask them, we did a data linkage study which actually shows patterns of health before and how that relates to recovery.”
In one section of the project, the researchers looked at hospital admissions data to discover how someone’s pre-accident health might affect recovery outcomes. This showed that pre-existing chronic pain was common and associated with a range of adverse post-accident outcomes. Those TAC clients who then had a delayed recovery experienced a subsequent onset of chronic conditions such as hypertension and depression.
The researchers also analysed Victorian records of mental health service and alcohol and drug treatment. They looked at the overall use of these services before and after the transport injury, as well as associations between mental health and drug and alcohol related issues and claim outcomes. This showed that pre-accident use of these services was significantly associated with more complex claims and delayed return to work.
Sponsored by the TAC through the Institute for Safety, Compensation and Recovery Research, the project will help the TAC more effectively identify clients who may be at risk and provide additional services to achieve better outcomes.
The faculty of forensic psychiatry is both a misnomer and a marriage of convenience. It is time to call a spade a spade and for a divorce to take place (see my detailed comments)
The faculty of forensic psychiatry is an attempt to combine two quite disparate groups, psychiatrist who work with offenders in the criminal justice system and psychiatrist who do civil assessments. Their only point of contact if that they provide reports to courts and other Tribunals.
I have worked in both areas, in the criminal justice system and as a psychiatrist doing civil assessments. I was the only psychiatrist at the Fairlea women’s prison in Melbourne for five years and have been a member of the Victorian Forensic Leave Panel for 20 years. I have also assessed many prisoners.
I have also done more than 20,000 civil assessments and I have been a co-author of the psychiatric assessment guide used in Victoria and South Australia.
I believe that this gives me some experience and insight into the issues that have arisen with the development of the Faculty. There is now no doubt in my mind that this marriage of these unlikely partners has proven to be a failure. It is clear that the committee of the Faculty of Forensic Psychiatry has little interest in those who do civil assessment. This is manifested by the training programs, the content of conferences and by the College website description of the faculty highlighting its fundamental purpose.
Forensic psychiatry is a psychiatric subspecialty relating to the law and the assessment of mental health in the criminal justice system
My attempts to remedy these issues have proven to be a failure. Psychiatrist who do civil assessments have no opportunity for any systematic training. No academic department has focused on providing civil assessment training, the faculty has provided a grab bag of criteria that may lead to membership of the Faculty. It continues to be a struggle for civil assessment psychiatrist to gain a foothold in conferences. Despite this situation there are a significant number who do civil assessment and have a desperate need for some systematic training and an opportunity to meet in a collegiate fashion and write about and discuss issues relevant to this area.
I believe the time has come for the inevitable divorce to take place. let the Faculty of Forensic Psychiatry go it own way and fulfil its self defined core task, assessment of mental health in the criminal justice system
Let those of us who are involved in civil assessments establish ourselves as a legitimate subspecialty. We should form a special interest group, the college only recognises specialist interest groups that exist in each state.. We will need some publicity to gain members. Such a group should include those who do civil assessments together with those who work in the area of occupational psychiatry as these two significantly overlap. By freeing ourselves of the burden of the Faculty of Forensic Psychiatry we will have the opportunity to run our own conferences, to obtain college funding, to develop our own training programs and, it may be that some academic department become interested in providing appropriate training courses when they realise that these are likely to generate significant fees.
For many years I have been puzzled by the difficulty classified this group of people. With a co-author I wrote a book called “Falling Apart-living with stress breakdown” in 1989. I wrote this because of a sense of frustration. The term ‘breakdown’ did not appear in the professional literature however many people told me that they had had a breakdown and it seemed to have some general meaning. Since then I have continued to be frustrated by the failure of any about diagnostic systems to come up with a diagnosis that encompasses this group. The term ;breakdown’ continues to elude any academic discussion. At the recent Faculty of Forensic Psychiatry conference in Sydney in September 2018 I presented a paper about this called “What do we call people who have had breakdowns? The diagnostic dilemma of long-term psychiatric disability‘. Click on the link to read the paper.
In the context of revising my book,’The DIY’ Guide to Civil Forensic Psychiatry’ I came across a paper by Tina Cockburn And Bill Madden entitled
This paper gives a comprehensive overview of the current situation regarding expert witnesses and liability in Australia. By contrast with the UK, New Zealand and Canada where expert witnesses are not immune for negligence suits, in Australia we are still immune from negligence suit in relation to court work, and work done out of court which is intimately connected with the work in court. The latter is of particular significance in medical negligence litigation given that such claims most often resolve without a court hearing. However the the High Court of Australia in Attwells v Jackson Lalic Lawyers Pty Ltd upheld the advocates’ immunity from suit in negligence. Crucially however, the majority took a narrower approach as to the scope of the immunity by holding that it does not usually extend to negligent advice which leads to the settlement of a case by agreement between the parties. It is worth reading the article.
During the recent Forensic faculty Conference there was a paper given about the situation in the UK where it appears some expert witnesses have suffered draconian consequences! Let us hope the situation here remains unchanged.
This review by Mr Mansfield is explicitly not to comment on government policy so his statement that ‘There would appear to be no rational reason for distinguishing psychiatric injuries from other types of injuries in terms of compensability or causation under the RTW Act.204 This is a policy position that merits review once the RTW Scheme has matured.” Mr Mansfield also commented on the government’s introduction in awards for government employees that boost their benefits in certain situations, eg danger, He wrote that ‘the ‘modification’ of the RTW Act by those instruments, therefore, may in the future make the management of claims under the RTW Act in the case of Public Sector employees more difficult.”
Other issues regarding the Act were raised in submission
The discrimination against workers with psychological injuries is blatant. it was commented on in submissions from the SA branch of the RANZCP and AMA SA.
The issue of pre-existing psychiatric impairment is always difficult for examiners. The usual situation is that a person who has had problems with anxiety or depression and has had or has continued to have a course of psychiatric or psychological treatment or counselling.
In my view there are a number of matters that need to be considered including the following has there been a diagnosable psychiatric disorder?
Has the diagnosable psychiatric disorder required treatment?
Has the diagnosed psychiatric disorder lead to any area of impairment? The examiner has to look to see has there been any problems with regard to employment, relationships, recreational activity, drug or alcohol abuse or other significant behavioural issues such as gambling, aggression, withdrawal and unexplained physical illness.
It is not sufficient for the examiner to say that on the basis of how this person was after the accident it is likely that they had a pre-existing impairment. The examiner has to demonstrate that prior to the accident the pre-existing impairment was manifested by a reduction in level of function or had been diagnosed by a competent clinician.
The task of the examiner is to determine all these factors in the period prior to the accident or incident that led to the claim.
The examiner is then required to determine whether there has been any change with regard to this pre-existing psychiatric disorder. Is factors indicating any change would be a deterioration in function such as ability to work, relationship difficulties, the development of drug or alcohol-related problems that seems to be arising from this pre-existing condition and any changes in treatment for the pre-existing condition such as an increase in medication, an altered frequency of treatment, hospitalisation and so forth.
The examiner can only determine these matters at the time of the examination. It should be a critical part of the examination for the examiner to closely question the claimant’s level of function in the period prior to the incident or accident.
When examining the claimant the stamina has to separate out that impairment arising from the work or transport accident injury as opposed to that impairment arising from the pre-existing condition or an unrelated subsequent condition. This relies on data such as the matters described above. The examiner should be able to provide sufficient data to make a convincing case to a layperson for the presence absence of any pre-existing psychiatric disorder bearing in mind that the presence of a disorder does not necessarily mean any level of impairment. The examiner has to bear in mind that there is a difference between having a psychiatric diagnosis and having a level of impairment.
For example a person who has had a significant depressive disorder but has been appropriately treated and has been on maintenance medication for some years with no reduction in their quality of life including their work capacity, their relationships and their recreational enjoyment cannot be regarded as having any level of impairment. It may be that if that person stopped taking medication their condition would deteriorate and what they would then have some level of impairment but this is a matter of conjecture. The critical issue is that even if they are taking medication is there any pre-existing level of impairment?
In terms of assessing the level of impairment arising from the pre-existing condition at the time of the examination the examiner should look at those symptoms due to the pre-existing impairment and attempt to relate them to the descriptors and the GEPIC and on that basis form an opinion as to what class and to what level in that class this pre-existing impairment now rates.
The examiner is then required to subtract that from the whole person impairment (bearing in mind that the whole person impairment relates to pure mental harm as consequential mental harm will have been removed.