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Harmonised Expert Witness Code of Conduct

March 8, 2017

 

 

As outlined in our November 2016 blog, Sweeping Changes for Federal Court Practice Notes, the Federal Court, in late 2016, issued 26 updated practice notes for use in federal litigation. The previously used Practice Note CM7 Expert Witnesses in Proceedings in the Federal Court of Australia was replaced with the considerably lengthier Expert Evidence Practice Note (GNP-EXPT) which included 2 annexures, the Harmonised Expert Witness Code of Conduct in Annexure A and the Concurrent Expert Evidence Guidelines in Annexure B.

In this blog, we consider the approach taken in the Harmonised Expert Witness Code of Conduct and the adoption of this Code by a number of states.

Content of the Harmonised Code

The Harmonised Expert Witness Code of Conduct covers issues which are commonly covered by the state based expert witness codes of conduct including:

  • The application of the code;
  • An expert witnesses’ duties to the court;
  • Requirements concerning the content of the report;
  • Protocol for when an expert changes their opinion;
  • Duty to comply with the court’s directions; and
  • Expert requirements when participating in expert witness conferences.

Adoption by the states

Currently, 4 states and territories have adopted the Harmonised Expert Witness Code of Conduct: ACT, NSW, Tasmania, and Victoria. As a result, these states

have a uniform approach to expert witness conduct when compared with the approach in the Federal Courts.

Advisory firm KordaMentha have provided the following summary of the approach taken by each state with respect to their expert witness codes of conduct[1]:

Screen Shot 2017-02-28 at 9.41.13 AM
The benefits of a uniform approach to expert witness conduct are widespread.

From the perspective of the expert witness, a uniform standard of expert witness obligations

creates a greater level of consistency across jurisdictions, which will in turn reduce

the complexity for experts operating in different jurisdictions.

It will also enable experts to produce reports more efficiently, with less time spent complying with

state-specific rules and more time focusing on the content of the report.

From the perspective of legal counsel and the client, a uniform system of expert witness guidelines

reduces the need for state-specific guidance for expert witnesses,

which should reduce time spent providing guidance to expert witnesses

who give testimony in multiple jurisdictions. Less time spent by legal counsel on any one task translates to lower fees for the client

and as such, a harmonisation of expert witness codes of conduct should lead to lower fees in relation to preparing expert witnesses for trial.

Non-Adopting States

While the expert witness codes of conduct utilised in the 4 states which have not adopted the Harmonised Expert Witness Code of Conduct

are fairly similar to the harmonised code, differences do exist which add to the requirements with which expert witnesses must comply.

For example, the South Australian code of conduct includes a requirement that an expert witness report ‘identify the differences (if any)

in assumptions made and opinions expressed compared to those made and expressed by a prior expert (if any)’. Such a requirement is not present in the harmonised code of conduct.

Conclusion

The harmonisation of expert witness codes of conducts reflects an exciting step forward for both expert witnesses and

legal counsel responsible for ensuring that the witnesses are aware of the requirements to which they must adhere

in the jurisdiction in which they are testifying. A uniform approach across the nation’s jurisdictions increases efficiency and productivity

in the legal industry and is, without a doubt, a positive step forward for expert witnesses and the legal industry.

[1] Ben Mahler, Expert Matters: Only some experts in harmony, KordaMentha,

http://kordamentha.com/publications/expert-matters-only-some-experts-in-harmony?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original

 

Stress Claims – How common are they and have they become more common?

November 28, 2016

Mental stress has accounted for an average of 95% of mental disorder claims over the past 10 years.

 

SafeWork Australia produced a report about this in April 2013.

 

Their findings were:

Mental stress claims are the most expensive form of workers’ compensation

claims because of the often lengthy periods of absence from work typical of

these claims.

>> Mental stress claims are predominantly made by women.

>> Men and women are more likely to make a claim for mental stress as they

get older but after they reach 54 years the likelihood that they made a claim

decreases.

>> More Professionals made claims for mental stress than other any other

occupation with over a third of their claims made for Work pressure.

>> There were more mental stress claims made for Work pressure than any

other sub-category.

>> The hazards that result in mental stress claims vary with worker age.

Younger workers are more likely to make claims as a result of Exposure to

workplace or occupational violence, whereas Work pressure is the main

cause of mental stress claims for older workers, peaking for those aged

45–49 years.

>> General clerks, School teachers and Police Officers accounted for the

majority of claims for Work pressure.

>> Women were around three times more likely than men to make a workers’

compensation claim due to Work-related harassment &/or workplace

bullying. Approximately one-third of all claims in this mental stress subcategory

were made by workers in the occupational categories of Advanced

clerical & service workers and General clerks.

>> For the industries with the highest number/rate of mental stress claims, the

majority of claims were for Work pressure. This was particularly true in the

Education sector. Claims for Exposure to workplace or occupational violence

were notable in the Retail trade industry, while the Transport & storage and

Health & community services industries dominated claims for Exposure to a

traumatic event.

 

WorkSafe Australia produced a further report in 2015 – Work-Related Mental Disorders profile

 

Their findings were that 6% of all workers compensation claims were for mental disorders .

 

The typical compensation payment for such a claim was $23,600 totalling $480 million for the 7820 Australian claimants. The average period of time spent off work was 14.8 weeks. 39% of these claims were for harassment/bullying/exposure to violence. 90% of all mental disorder claims were attributed to stress.

 

65% of all mental disorder claims were awarded to workers aged 40 or over.

 

For 1 million hours of work there were 0.5 mental disorder claims.

 

Occupations most at risk:

First responders-police, paramedics and firefighters comprising one in five of this group

welfare and community workers affirm one in 10 were compensated, prison officers, bus and rail drivers and teachers of whom one in five were compensated.

 

The more common conditions included reactions to stressors (41%), anxiety/stress disorders (28%) and post traumatic stress disorder (11%). Combined they accounted for, on average, about 4/5 mental disorder claims over the period.

 

The most up-to-date statistics are those provided by WorkSafe Western Australia in October 2016.

 

Their findings were that: Over four years, the number of stress-related claims increased by 25 per cent.  In 2015/16, there were 547 stress-related claims lodged,  representing

3.2 per cent of all workers’ compensation lost-time claims.

 

Although the number of stress-related claims increased, the frequency rate (claims per million hours worked) for stress-related claims is stable.

 

Females accounted for 59 per cent of stress-related claims compared with 41 per cent for males.

In terms of prevalence of stress claims, female workers tend to have a higher frequency rate.

The top three industries for stress-related claims were:

 

Health care and social assistance           25%

public administration and safety            24%

education and training                               16%

 

The causes of stress and later claims included:

 

Work pressure                                              39%

Harassment and bullying                           23%

exposure to a traumatic event                               19%

exposure to workplace violence            14%

other causes                                                  5%

 

There appears to be a significant drop in the number of stress-related claims in WA representing 3.2% of all workers compensation lost time claims, the WorkSafe Australia statistics were that 6% of all claims were stress-related. In Victoria in the late 1990s about 5.5% of all claims were stress-related. There appears to have been little real change in the incidence of stress-related disorders over the last 20 years.

APA guidelines for the psychiatric evaluation of adults 2015

September 16, 2016

The American Psychiatric Association published guidelines for the psychiatric evaluation of adults in 2015. These guidelines occupy 170 pages. This is about the most complete and comprehensive guide I have ever seen although whether or not it is of any use is entirely up to you.

A Glimpse of the Monash-Epworth Longitudinal Head Injury Outcome Study

September 15, 2016

The Longitudinal Head Injury Outcome Study follows up a large cohort of individuals who have sustained moderate to severe Traumatic Brain Injury (TBI). This project aims to provide a comprehensive picture of the changes experienced by people who have sustained a TBI as well as their families over a period of 20 years. Changes are captured in terms of living skills, study, employment, recreation, as well as social and personal relationships. In addition, factors predicting outcomes are identified in each of these domains.

This study comprised 666 individuals from the Monash-Epworth Rehabilitation Research Centre (MERRC) database who had been competitively employed prior to injury, for whom Compensation data Base data were available and who had received loss of earnings payments after injury. In addition, using the CRD the authors were able to begin examining whether specific types of service utilisation were associated with employment status. Each individual’s services were aggregated over the first six months post-injury. This included medical services, such as surgeries, pathology, radiology, and psychiatry, as well as allied health services, which included psychology, social work, and vocational assistance.

The authors have highlighted the presence of a good recovery group as well as groups of individuals who show poorer outcomes despite having similar injury severity. These are associated with greater emotional distress, low economic and family support, low resilience and greater service utilisation. This group also incurs greater costs. They also identified a group of individuals who were potentially affected by reduced self-awareness of injury-related changes, leading to under-reporting of problems and conversely by emotional distress potentially leading to some over-reporting of symptoms. Their findings further highlighted the factors other than injury severity that contribute to longer-term outcomes. These include the personal strengths of the individual, including independence and self-esteem and resilience, as well as economic and family supports, their level of emotional distress and motivation to recover.

The authors have identified some key predictors of early return to work (RTW) as well as more persistent unemployment. Individuals were more likely to return to work in the first 6 months if they had shorter duration of post traumatic amnesia (PTA) and if they were in managerial or professional occupations prior to injury. A combination of background, injury-related, and service utilisation variables predicted more persistent unemployment between 6 months and three years post-injury. Individuals were more likely to experience a protracted RTW if they were older, female, were labourers, machinery workers, or technician prior to injury, had longer duration of PTA, and had a moderate or major limb injury. In addition, greater utilisation of specialist practitioner, psychology services, and analgesic medication within the first 6 months was associated with delayed RTW. Conversely, assessment and rehabilitation for return to driving was associated with earlier RTW, highlighting the importance of driving for RTW. These findings demonstrate the roles of complex physical injuries, pain and mental health factors in delaying return to employment following TBI.

Post-traumatic stress disorder was the most common anxiety disorder and was associated with poor quality of life. PTSD was most commonly diagnosed between 6 and 12 months post-injury. Extended periods of PTA, cognitive dysfunction and hospitalisation following TBI may postpone symptom development rather than reduce the risk, with subsyndromal symptoms frequently preceding the development of full PTSD. This provides a potential time-window for early identification and treatment. Rehabilitation clinicians should be aware that patients might develop clinically significant trauma symptoms despite protracted post-traumatic amnesia. There was high comorbidity between PTSD, anxiety, and depression as well.

The cross-cultural study demonstrated the strong influence of cultural background on outcome following TBI over and above injury severity and other demographic factors. As a group, individuals from culturally and linguistically diverse (CALD) backgrounds reported less independence in daily activities, were more emotionally distressed, showed a heightened awareness of injury-related changes and less problem-focused coping than individuals from English-speaking backgrounds. They tended to believe that more external factors such as Chinese medicine, praying or having family take care of them would help their recovery. They were less likely to believe that their own behaviour could help their recovery. They were more distressed about role changes. However, there were marked differences across geocultural regions, and differences in the demographic characteristics of these subgroups (e.g., age, education) also appear to have been influential.

Changes in sexuality following traumatic brain injury

  • Individuals with TBI tended to score lower than their partners on the measure of sexual functioning
  • Approximately one third of the TBI group scored below the 2nd percentile for orgasm, as well as for sexual arousal, sex drive, and overall sexual function
  • Participants with TBI were more likely to have lower interest in sex compared to their partners, which included both men and
  • The findings suggest that a significant proportion of individuals with TBI have organically based changes in sexual function as a consequence of
  • These impact on their sexuality and that of their

There may also be relationship issues that contribute to a decline in sexual functioning, including cognitive and behavioural changes as well as other stressors.

The authors have highlighted the presence of a good recovery group as well as groups of individuals who show poorer outcomes despite having similar injury severity. These are associated with greater emotional distress, low economic and family support, low resilience and greater service utilisation. This group also incurs greater costs. They also identified a group of individuals who were potentially affected by reduced self-awareness of injury-related changes, leading to under-reporting of problems and conversely by emotional distress potentially leading to some over-reporting of symptoms. Their findings further highlighted the factors other than injury severity that contribute to longer-term outcomes. These include the personal strengths of the individual, including independence and self-esteem and resilience, as well as economic and family supports, their level of emotional distress and motivation to recover. Having identified these key measures and profiles in patients assessed 6 months-10 years post-injury the authors aim to see if these measures are predictive in the early stages after injury. If it is possible to identify these groups early they may be able to develop and tailor appropriate treatments to address issues relevant to each profile with the ultimate aim of improving outcomes.

Contradictory information about Zyban from the NIH

May 4, 2016

A classic example of one hand not knowing the other or the perils of partial information.  In Resources you will find 2 papers from NIH.  The first recommends bupropion (Zyban) for use in depression because of lack of weight gain when tested against fluoxetine and sertraline.  The 2nd paper is patient information from Medline Plus and warns against the risks of taking bupropion both for smoking control and for depression! More mind boggling, read for yourself

List of participants First Mental Health Reform Stakeholder Group Meeting 22 February 2016

April 29, 2016

By my count there were:

2 psychiatrists

1 psychologist

1 GP

1 mental health nurse

1 carer rep

1 consumer rep

4 mental health bodies

6 bureaucrats

At the meeting, this diverse range of stakeholders raised a multitude of views and concerns, particularly the lack of mental health consumer and carer input into private health network.

Adjunct Assoc. Prof. Kim Ryan CEO, Australian College of Mental Health Nurses
Professor Malcolm Hopwood President, RANZCP
Professor Lyn Littlefield Executive Director, Australian Psychological Society
Professor Morton Rawlin Vice President, Royal Australian College of General Practitioners
Dr Bill Pring Private Mental Health Alliance (PMHA), AMA Observer
Mr Frank Quinlan CEO, Mental Health Australia
Ms Georgie Harman CEO, Beyondblue
Ms Sue Murray CEO, Suicide Prevention Australia
Ms Marita Cowie CEO, Australian College of Rural & Remote Medicine
Mr David Meldrum Executive Director, Mental Illness Fellowship of Australia
Mr David Butt CEO, National Mental Health Commission
Ms Janet Meagher Consumer representative
National Mental Health Consumer and Carer Forum
Ms Eileen McDonald Carer representative
National Mental Health Consumer and Carer Forum
Mr Stephen Brand Senior Manager, Policy & Advocacy
Australian Association of Social Workers
Professor Tom Calma Advisor
Australian Government Department of Health
Ms Natasha Cole (Chair) First Assistant Secretary, Health Services Division
Australian Government Department of Health
Ms Colleen Krestensen Assistant Secretary, Mental Health Reform Taskforce
Australian Government Department of Health
Dr Anthony Millgate Assistant Secretary, Mental Health Services Branch
Australian Government Department of Health
Ms Emma Gleeson Acting Assistant Secretary,
Mental Health Early Intervention Branch
Australian Government Department of Health

 

 

Bullying claim dismissed by the Fair Work Commission (April 2016)

April 22, 2016

The Fair Work Commission has found an anti-bullying applicant couldn’t be at risk of future bullying because she had elected to be “treated as being dismissed” in 2012, and even launched an unfair dismissal claim.

Commissioner Peter Hampton found that despite confusion around the worker’s employment status, it was apparent that both her and her employer had “treated the employment contract as being at an end for some years and the litigation between them has been conducted in that light”.

The Commissioner also rejected the worker’s request to refer the matter to SafeWork NSW.

The worker was employed by a NSW online healthcare business as a marketing director in early 2012. In July that year, she was denied access to work emails while on extended sick leave, which led her to believe she had been sacked.

She subsequently launched several legal proceedings including an unfair dismissal claim, a workers’ comp claim, and complaints to the Australian Human Rights Commission.

The worker also sought anti-bullying orders against the healthcare business’s managing director, telling Commissioner Hampton that she hadn’t been dismissed from the business and was at risk of being bullied in future because she was seeking to return to work there.

She argued she was still an employee of the company because, among other things, she wasn’t paid out any termination entitlements, and the company CEO sent her an email in late July 2012 stating she hadn’t been dismissed.

The employer argued that in launching an unfair dismissal proceeding, the worker clearly believed she had been dismissed, and had abandoned her employment in electing to be treated as being dismissed for the purposes of her unfair dismissal claim.

Commissioner Hampton rejected the worker’s application, finding she was no longer an employee of the company, there were no prospects of her returning, and there was no “foreseeable future risk” of her being bullied by the managing director.

“The employment contract concluded in consequence of the election by the [worker] to be treated as being dismissed and the subsequent events and conduct by the parties,” he said.

“I am also not satisfied that any potential return-to-work arrangements, or other circumstances, exist in this matter where there is a foreseeable future risk of the [worker] being subject to bullying conduct as a worker whilst at work by the managing director of the employer.”

Commissioner Hampton noted that the worker had also sought for the FWC to refer the alleged ongoing risk of bullying faced by other workers at the business to SafeWork for investigation.

“[There] is no basis to deal with this under this application,” he said.

In June last year, Commissioner Hampton found the FWC only had jurisdiction to formally refer bullying incidents to the relevant work health and safety regulator if the applicant was at risk of future bullying (see related article).

KM [2016] FWC 2088 (18 April 2016)

Statistics from Work Safe Australia about Work and Mental Disorders

March 3, 2016

WORK SAFE AUSTRALIA 2015

WORK-RELATED MENTAL DISORDERS PROFILE

This is a brief overview of this interesting paper.  You can find the full document here.

Work-related mental disorders, each year on average:

  • 7820 Australians are compensated
  • 6% of workers’ compensation claims
  • $480 million total claims payments
  • $23 600: typical compensation payment per claim
  • 14.8 weeks: typical time off work
  • 90% of mental disorder claims are attributed to mental stress
  • 39% of mental disorder claims are caused by harassment, bullying or exposure to violence
  • 0.5 mental disorder claims awarded per 1 million hours worked
  • 0.8 mental disorder claims awarded per 1000 workers
  • Female workers 2.3 times the number of claims per million hours worked compared with male workers
  • 65% of mental disorder claims awarded to workers aged 40 and over
  • Compensated for a work-related mental condition:
    • 1 in 5 compensated defence force members, fire fighters or police officers
    • 1 in 5 compensated teachers
    • 1 in 10 compensated health and welfare support workers
  • 64% of mental disorder claims arise from 4 out of 19 industry divisions:
    • Public administration and safety (21%)
    • Education and training (14%)
    • Health care and social assistance (21%)
    • Transport, postal and warehousing (8%)
  • 46% of mental disorder claims from the transport, postal and warehousing industry are associated with a vehicle accident
  • 17% mental disorder claims awarded to female workers were made by school teachers or health and welfare support workers
  • Female defence force members, fire fighters, and police: 16 times higher than average claim rate
  • Mental disorder claims involving a form of harassment or bullying:
    • 1 in 3 females
    • 1 in 5 males

NSW workers compensation guidelines for the evaluation of permanent impairment (4th edition) released

December 3, 2015

The NSW workers compensation guidelines for the evaluation of permanent impairment (4th edition) 1 April 2016 has just been released.  It has been re-written to conform with the Safe Work Australia template. However there is no agreement by states using the GEPIC to use the PIRS and considering the disdain with which the PIRS and AMA6 are held together with the cost of training any such change is unlikely. The changes to the PIRS are as follows:

Psychiatric and Psychological disorders

Paragraph 11.4 from the 3rd edition, on the development of the PIRS has been removed to align to the Safe Work Australia national template guideline. The numbering therefore changes from 11.4 onwards (in comparison to the 3rd edition).

Clause Change

  1. 3

Introduction

Removed 3rd and 4th sentences that referenced s67 pain and suffering.

Removing the reference to s67 in this clause does not affect an exempt worker’s entitlement to claim for pain and suffering compensation. The reference to s67 in this clause was a case management tool which is now considered inappropriate in a medical guideline.

  1. 9

Co-morbidity

Removed the Alzheimer’s disease example. Replaced with a bi-polar disorder example.

11.10

Pre-existing impairment Minor change to second half of the paragraph for improved clarity, and to align with the wording in 1.28 in the Guidelines: Rephrased to:

The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.

WorkSafe Victoria, problems, doctors and political shenanigans

April 10, 2015

Doctor’s attitudes towards WorkCover in Victoria

AMA Victoria did a survey of doctors attitudes towards issues regarding workers compensation in Victoria in December 2014 and January 2015. As expected comments were made that these patients generally demand more time, attention and effort than other patients but this is not reflected in the remuneration rates for medical practitioners.  There were concerns about the way the scheme was operated in particular its adversarial nature, the complex processes that resulted in delays getting approval for appropriate treatment and mitigated against an early return to work. There were also a range of ethical issues. Just over half of the survey respondents considered reducing their participation in the scheme and almost 20% considered withdrawing fully.

Victorian branch of the AMA prepared a submission to a WorkSafe Victoria independent review of reimbursement rates for medical services

This submission noted the results of the survey and commented on particular matters including:

Inadequate reimbursement

  • some activities not reimbursed at all
  • doctors feeling like you’re being treated as the enemy
  • a recommendation at the AMA list of services and fees was more reasonable than using the medical benefits schedule.

 A Breakup of WorkSafe Expenditure

 in 2013/2014 the largest cost to the scheme was compensation paid to workers for loss of earnings amounting to $624 million or 42% of total scheme costs. By contrast the medical practitioner component treatment and rehabilitation costs was estimated at $102 million, just over 30% of all treatment and rehabilitation costs and less than 7% of total scheme costs.

However in the meantime in early March 2015 the Labour government fired the Chief Executive Officer and chairperson of WorkSafe Victoria. The ostensible reason was because of the failure to identify health risks associated with the Fiskville Fire Brigade training depot. It is believed there was a strong political reason because those in charge were trying to move to a more cooperative framework and had met a good deal of opposition. Who knows what will happen with this review of reimbursement rates!