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
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.
During 2017 WorkSafe Victoria invited the Victorian committee of the College Faculty of Forensic Psychiatry to meet and discuss a number of issues including who should do IME work, documentation, questions asked, timing, security, and even fees. We had two meetings, I posted my thoughts at that time, they proved to be prescient! We were to have another meeting in July that did not proceed and we heard nothing further.
All IMEs then received a document dated 31 January, 2018 that included several attachments.
At WorkSafe we are looking for better ways to work with our IME’s.
It is important to us that you are kept up to date with relevant and useful information to support you in your roles as IME’s with WorkSafe.
Firstly, we are trying a different approach to the way that we will communicate with you to keep you informed about important updates through our IME Insight.
In this issue:
We want to hear from you
Have ideas or feedback on how we can support you in your roles or to let us know if this type of update is useful, please contact email@example.com
(See attached file: IME newsletter – issues one – jan 18.pdf)(See attached file: New Mental Injury IME Question Effective 18 December 2017.docx)(See attached file: New Mental Injury Questions A Guide for Practitioners V1 Dec 2017.docx)(See attached file: New-IME-Mental-Injury-Questions-IME-Coms V3 2018 (002).png)
WorkSafe IME Provider Engagement Team
One attachment was the newsletter called ‘IME Insight’ dated 1 January 2018, a one-page document stating that there were new mental Mental injury questions
Another was “the New Mental Injury IME Questions” of which there are eight questions but so many sub- questions that in all there are a total 36 questions. There is also a guide to these questions, These questions in this guide were developed by the following:
Karen Chapman | Project Co-ordinator
Chris Lyons | Provider and Quality Co-ordinator
Dielle Felman | Consultant Psychiatrist MBBS (Hons), MPM, FRANZCP
Dr Felman was placed in a difficult position. She was asked to give advice about these questions but had no involvement with the Forensic faculty committee and was essentially speaking for herself.
The chair of the forensic faculty Victorian committee then contacted Lisa Boyd,who had been running the process and was told “We are looking for a very broad-based approach to liaising with psychiatry”; having the Forensic Faculty as the point of liaison does not seem to fit with this!
So much for consultation – Not happy Worksafe. It is consistent with my experiences with WorkSafe extending over 25 years. I have been a member of the AMA VWA/TAC committee during much of this time and it is the same old story, bullshit consultation (to tick the box) and on they go doing what they intended doing all along. I have decided to not re-apply to be an IME.
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.
It is a risk to health and safety because it may affect the mental and physical health of workers. Taking steps to prevent it from occurring and responding quickly if it does is the best way to deal with workplace bullying.
Bullying can take different forms including psychological, physical or even indirect—for example deliberately excluding someone from work-related activities. It can be obvious and it can be subtle, which means it’s not always easy to spot.
Some examples of workplace bullying include:
Not all behaviour that makes a worker feel upset or undervalued is workplace bullying.
Reasonable management action taken in a reasonable way is not workplace bullying. Managers are responsible for monitoring the quality and timeliness of work and providing staff with feedback on their performance. If performance issues need to be addressed, the conversation needs to be constructive and supportive, and focus on the positives as well as the negatives. It should not be humiliating or demeaning.
Unreasonable behaviour may involve unlawful discrimination or sexual harassment, which in isolation is not workplace bullying. Discrimination on the basis of a protected trait in employment may be unlawful under anti-discrimination, equal employment opportunity, workplace relations and human rights laws.
Differences of opinion and disagreements are also generally not workplace bullying. However, in some cases, conflict that is not managed may escalate to the point where it becomes workplace bullying.
There are legal obligations to consider all health and safety risks in the workplace including workplace bullying.
Failure to take steps to manage the risk of workplace bullying can result in a breach of WHS laws.
Workplace bullying is best dealt with by taking steps to prevent it from happening and responding quickly if it does occur. The longer the bullying behaviour continues, the harder it becomes to repair working relationships and the greater the risk to health and safety.
Workplace bullying can seriously harm worker mental health with depression, psychological distress and emotional exhaustion common outcomes for bullied workers. These health outcomes may adversely impact the workplace with workers taking sick leave and being less productive (presenteeism), both of which damage productivity.
Organisations can minimise the risk of workplace bullying by taking a proactive approach to identify early, any unreasonable behaviour and situations likely to increase the risk of workplace bullying occurring.
Organisations should implement control measures to manage these risks, and monitor and review the effectiveness of these measures. This could include activities such as:
In 2016, we published a report that outlines how improving management commitment to psychological health and safety could be an innovative strategy to reduce lost productivity, as well as substantially improve the wellbeing of workers.
The report interrogated data from the 2014–15 Australian Workplace Barometer Project, collected via telephone from 4,242 employees nationwide.
Key findings included:
SWA is not a regulator and cannot advise you about bullying in the workplace. If you need help, please contact your state or territory work health and safety authority.
In some circumstances, an order to prevent or stop a worker being bullied can be made under the Fair Work Act 2009 by contacting the Fair Work Commission (link is external).
The Australian Human Rights Commission (link is external) investigates and resolves complaints (under federal laws) of bullying based on a person’s sex, disability, race or age. It can also investigate and resolve complaints of workplace bullying based on a person’s criminal record, trade union activity, political opinion, religion or social origin.
There are a number of services available to people who are feeling depressed, stressed or anxious as a result of bullying behaviour. They include:
There were complaints by the ombudsman that claims agents were using preferred psychiatrists, WorkSafe have endeavoured to deal with this by centralising the appointment process however anecdotally it appears that they have outsourced this to others including eReports and other such agents totally going against the concept they are espousing.
Read below to see the drama unfolding. I will keep you informed
Since my last blog in June 2017 there have been further meetings with representatives of WorkSafe and representatives of the College and the medicolegal group. They intend to centralise all appointments for psychiatrists so as to prevent the notion of preferred psychiatrists and we expressed our concerns about being locked into providing timeslots with no guarantee of payment amongst other things. We have raised a number of other issues with them including funding but they refused to deal with this and it is clear that they have their own agenda (as always).
In the meantime we heard that eReports and other agents had been promised a certain number of appointments a week. We had great concerns about this.this was accentuated by the WorkSafe draft Service Standards document, the relevant parts were as follows:
2.2 The person to be examined must not be kept waiting for the examination for an unreasonable time. IMEs should aim to see Injured Workers within 30 minutes of the scheduled appointment time. In the event that the Injured Worker has not presented for the appointment time, it is up to the discretion of the IME as to whether the examination will go ahead.
2.3 IMEs should notify the referring case manager of any appointments that they need to cancel as soon as is practical after they become aware of the need for the cancellation, to allow the case manager to rebook the appointment with the next available IME.
2.4 IMEs should accept referrals or undertake an examination for conditions for which they are qualified and experienced to provide an expert independent opinion.
The following letter was sent to WorkSafe
We write to you on behalf of the Victorian Medicolegal Group concerning the above proposed “requirements”.
The Medicolegal Group represents the vast majority of psychiatrists engaged by WorkSafe as accredited Independent Medical Examiners. As such we have always considered ourselves to be an integral component of the Victorian WorkSafe system. Engaged by WorkSafe under the terms of the Accident Compensation Act 1985, our role has been to provide expert medical advice to assist WorkSafe in determining the outcome of claims and assisting with WorkSafe’s aim of returning injured workers to appropriate employment.
Over the years, we have demonstrated our willingness to proactively assist WorkSafe. For example, our members have conducted training sessions in report writing, provided quality assurance monitoring and even the development of the gazetted measure of impairment for Mental Disorders and training in its use.
The Medicolegal Group also facilitates monthly peer review group meetings for psychiatric IMEs, a critical element in optimising the ongoing production of high quality psychiatric reports for WorkSafe. We see no reason why this cooperation should not continue into the future and indeed is enhanced.
Our concern is with the changes to the booking systems in the proposed arrangements. We believe that it is unfair to request any contractor – let alone a medical professional – to make available blocks of hours on the possibility that these may be contracted. Where these hours are not actually booked for sessions, the Authority does not propose to compensate the practitioner. We believe that this is unduly harsh and has the potential to seriously affect the viable operation of our practices. We would point out that this system has, to an extent, been trialled with respect to stress claims and has already resulted in the realisation of these concerns. The planned roll-out of these changes to cover all bookings will only exacerbate the problems associated with this new process.
It is for this reason that members of our group have not signed the proposed agreement until we have resolved this matter.
We would point out that we have already endeavoured to resolve this matter directly with Worksafe but have been unsuccessful in receiving any meaningful response, if at all. Our concerns over this situation have been heightened due to the fact that, under the terms of the proposed agreement, it is the intention of WorkSafe to institute this new booking system by mid-August. As a consequence, on 28th June 2017, we sought urgent discussions with WorkSafe to propose an alternative booking system that we believe addresses the real needs of the Authority. Unfortunately we have received no reply.
In addition, correspondence and communications from corporate medicolegal providers, claiming to have agreements with Worksafe to undertake up to thirty psychiatric IME appointments per week, suggest that WorkSafe has sought arrangements with those providers outside the parameters of the agreement proposed to individual practitioners. We consider this a breach of good faith.
We believe that this situation could have been avoided if WorkSafe had in place a process of proper consultation with the profession to discuss changes such as these prior to their being issued. We note that we were advised by Worksafe representatives of the proposed arrangements at a face to face meeting in June, and expressed our concerns at this time. However this was not a consultation as Worksafe has proposed to roll-out the new requirements with no attempt having been made to respond to our concerns.
It is in this regard that we propose a regular process of consultation with the profession as a forum to highlight and discuss changes and improvements to the processes of our engagement and any other matters relevant to our engagement. We believe that this would restore good-faith relations between WorkSafe and our profession.
We would also point out that we write to you as a result of the failure of communication by officers of WorkSafe, who have failed to respond to our correspondence of the 28th June 2017 requesting urgent discussions to identify problems and find solutions.
Again we would stress that we believe that this is an unfortunate situation, given the history of previous cooperation between all parties concerned. We would appreciate the opportunity to address these issues to you in person at the earliest opportunity.
The Senate Community Affairs References Committee
LIST OF RECOMMENDATIONS
5.14 The committee recommends that AHPRA review and amend the way it
engages with notifiers throughout the process to ensure that all notifiers are
aware of their rights and responsibilities and are informed about the progress
and status of the notification.
5.24 The committee recommends that AHPRA and the national boards develop
and publish a framework for identifying and dealing with vexatious complaints.
5.28 The committee recommends that the COAG Health Council consider
whether recourse and compensation processes should be made available to health practitioners subjected to vexatious claims.
5.34 The committee recommends that AHPRA and the national boards
institute mechanisms to ensure appropriate clinical peer advice is obtained at the earliest possible opportunity in the management of a notification.
5.39 The committee recommends that AHPRA immediately strengthen its
conflicts of interest policy for members of boards and that the Chair of the board should make active inquiries of the other decision makers about actual or potential conflicts of interest prior to consideration of a notification.
5.44 The committee recommends that AHPRA develop a transparent
independent method of determining when external advice is obtained and who provides that advice.
5.48 The committee recommends that AHPRA consider providing greater
remuneration to practitioners called upon to provide clinical peer advice.
5.56 The committee recommends that AHPRA formally induct and educate
board members on the way the regulatory powers of the board can be used to
achieve results that both manages risk to the public and educates practitioners.
5.61 The committee recommends that AHPRA conduct additional training with
staff to ensure an appropriately broad understanding of the policies it
administers and provide staff with ongoing professional development related to the undertaking of investigations.
5.67 The committee recommends that the COAG Health Council consider
amending the National Law to reflect the Psychology Board of Australia’s policy
on single expert witness psychologists acting in family law proceedings.
5.71 The committee recommends that the COAG Health Council consider
making a caution an appellable decision.
5.74 The committee recommends that the COAG Health Council consider
whether notifiers should be permitted to appeal board decisions to the relevant tribunal.
5.80 The committee recommends that AHPRA take all necessary steps to
improve the timeliness of the complaints process and calls on the Australian
Government to consider avenues for ensuring AHPRA has the necessary
additional resources to ensure this occurs.
5.81 The committee recommends that AHPRA institute a practice of providing
monthly updates to complainants and medical professionals whom are the
subject of complaints.
Practicing occupational physician, Dr Peter Sharman writes about using the evidence base to guide clinical practice and improve health outcomes in compensation systems on his website. Most of us have seen some of these sites, a considerable part of their content is doctor bashing. His latest article is about a new approach to injured workers’ support groups. The full article can be read at https://insultandinjury.org/2016/12/17/injured-worker-support-and-representation-in-tasmania-do-we-need-more/
Note the establishment of sensible groups in NSW, South Australia and Victoria.
In the early days of this site I wrote an article about Injured Worker Support Websites where I asked for comments about the best approach to provide such support. There was a lot of negativity about the WorkCover Victim website at that time. Here is an excerpt from what I considered to be a balanced comment about my article:
“I don’t think websites run by injured workers who are entrenched in their own sick roles or victim roles themselves, will ever be healthy or empowering to other injured workers; its like leaving the lunatics to run the asylum and wondering why no one is getting any better. However, these seem to be the very people who tend to set up these websites and Facebook groups. Without an appropriately skilled person facilitating or moderating these support websites and focusing its members on positive mind-sets and positive skill building, they devolve into an orgy of victimhood, toxic behaviours and one big pity-party.”
The best known active professional support sites include the New South Wales based Injured Workers Support Network co-ordinated by Rowan Kernebone and in South Australia, Rosemary McKenzie-Ferguson runs the Work Injured Resource Connection which provides, as well as information, more practical help through their ‘Bags of Love’ programme and has set up a Deceased Workers Memorial Forest in commemoration of lives lost due to the work place .
More recently the Injured Workers Group of Victoria has set up a site operated by injured workers (I understand with Rowan’s assistance).
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
>> 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
>> 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
>> 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
>> 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
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.
The College has issued a strong position statement condemning the use of subpoenas to access patient records without their consent and refers to significant issues damaging patent- psychiatrist trust and possibly a breakdown in therapy. it is worth reading.
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.
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.