news

Workshop in late August re Family Court Reports

May 26, 2019

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.

Instructions on language from WorkSafe Victoria

May 21, 2018

In its most recent communication WorkSafe Victoria has advised IMEs about appropriate use of “gendered” language.   I make no commentary other than to note the threat if you do not comply.  Who would be an IME?.

The full document reads as follows.

Gendered language

WorkSafe has developed a guide for IMEs about the appropriate use of gendered language.

Binary male/female language expressed through gender specific terms, such as husband/wife, and gendered pronouns, such as he/she, do not always appropriately reflect our community diversity.

The Guide

This document provides Independent Medical Examiners (IMEs) with a guide to the appropriate use of gendered language.

Binary male/female language, expressed through the use of gender specific terms, such as husband/wife, and gendered pronouns, such as he/she, do not always appropriately reflect the diversity of our community.

What does it mean to misgender a person?

The Victorian Government’s Inclusive Language Guide defines misgendering as:

Using language to refer to a person that is not aligned with how that person identifies their own gender or body. Most but not all intersex and trans people who identify as male prefer to be referred to as ‘he’. Most but not all intersex and trans people who identify as female prefer to be referred to as ‘she’. Some people prefer to be described with their first name only or a non-binary pronoun such as ‘they’ rather than a gendered pronoun.

To avoid misgendering, the use of gender-neutral pronouns such as they, them or their may be more appropriate in some circumstances. Gender-neutral pronouns, such as ‘zie’ and ‘hir’, may also be used. Most importantly, pronouns used should align with those requested by the person and should be used consistently. If you are unsure, respectfully ask the person what their preferred pronoun is and ensure that you use this pronoun when communicating.

Misgendering of a person may amount to a breach of the IME Service Standards. Please refer to ‘Conduct during examination’ in the IME Service Standards for more information.

November 2017

WorkSafe Victoria- dialogue with psychiatrists II – another bit of chicanery

March 13, 2018

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.

Dear IMEs,
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.
Strategic Communications
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:

  • Mental Injury claims and the updated questions for Psych IME’s (see attachments)
    · Conflict of Interest: Have you got the processes in place to mitigate Conflict of Interest?
    · Recruitment Process (Update of the waves & dates)

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 independent_medical_examiner@worksafe.vic.gov.au
(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)
Kind Regards
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.

Safe Work Australia – a useful guide to nationwide trends

October 12, 2017

I try to look at the website of Safe Work Australia because it is full of information about nationwide issues and issues in particular states. There is a comparison of the various workers compensation schemes in the different states and a plethora  of statistical information. It is well worth a look.

For example they are attempting to develop a nationwide system of impairment assessment (including the PIRS)

Permanent impairment

When someone sustains an injury it may result in a permanent impairment.

A prerequisite to determining the level of permanent impairment is the understanding that it shouldn’t be decided until the claimant has improved as much as is possible; that is when their impairment has become stable or isn’t likely to improve despite medical treatment.

  • In addition to the assessment principles laid out in the AMA Guides, scheme legislation also provides substantial guidance on how to determine whether or not impairment is permanent.

In 2013, we made recommendations to the Ministerial Council on nationally consistent arrangements to assess permanent impairment, which were agreed to by the majority of jurisdictions in early-2014.

As a result we are now developing a national permanent impairment guide and a system for updating it, as well as developing a training package for medical practitioners who want to become permanent impairment assessors.

 

Workers’ compensation statistics Australia 2014-2015

April 13, 2017

The most recent Worker’s compensation statistics were released by Safe Work Australia in early 2017. The three industries with the highest number of serious claims were labourers, community and personal service workers and machinery operators and drivers.
A serious claim is an accepted workers’ compensation claim for an incapacity that results in a total absence from work of one working week or more. Claims in receipt of common-law payments are also included. Claims arising from a journey to or from work or during a recess period are not compensable in all jurisdictions and are excluded.

Surprisingly there is no mention of claims for “stress” or mental injury recorded in the summary, buried within the document is the following;

Diseases led to 10 per cent of serious claims and the most common diseases were mental disorders (5.7 per cent).

A higher percentage of female employees’ serious claims arose from mental disorders (over 9 per cent for females versus just under 4 per cent for male employees).

Mental stress accounted for 5 750 claims, some 5.4% of the total number of claims. Mental stress as apercentage of total claims has been consistent for many years

Number of serious claims by nature of injury or disease, 2000–01 and 2009-10 to 2014–15p

Nature of injury or disease 2000-01 2009-10 2010-11 2011-12 2012-13 2013-14 % chg 2014-15p
Mental disorders 6 620 8 095 8 735 8 355 7 680 6 685 1% 6 130

 

Serious claims: median time lost (working weeks) and compensation paid by mechanism of injury or disease, 2000−01 and 2009–10 to 2013–14

Mechanism of injury or disease 2000-01 2009-10 2010-11 2011-12 2012-13 2013-14 % chg
Mental stress 11.4 15.2 16.6 16.6 16.5 16.0 40%
Mechanism of injury or disease 2000-01 2009-10 2010-11 2011-12 2012-13 2013-14 % chg
Median compensation ($)
Mental stress $14 500 $24 200 $26 200 $26 600 $27 200 $26 400 82%

Summary of statistics
 Preliminary data show that there were 107 355 serious workers’ compensation claims in 2014–15, which equates to 6.5 serious claims per million hours worked.
 Between 2000–01 and 2013–14, the frequency rate of serious claims fell by 33 per cent from 9.5 serious claims per million hours worked to 6.3.
 In 2014–15, the frequency rate for male employees was 7.2 serious claims per million hours worked, while the frequency rate for female employees was 5.5.
 In 2014–15, the three occupations with the highest number of serious claims per million hours worked were Labourers (18.6), Community and personal serviceworkers (12.4), and Machinery operators and drivers (11.8).
 In 2014–15, the three industries with the highest number of serious claims per million hours worked were Agriculture, forestry and fishing (13.7),

Construction (9.8) and Manufacturing (9.3).
 In 2014-15, injury and musculoskeletal disorders led to 90 per cent of serious claims and the most common were Traumatic joint/ligament and muscle/tendon injuries (43.8 per cent). Diseases led to 10 per cent of serious claims and the most common were Mental disorders (5.7 per cent).
 Muscular stress while lifting or handling objects caused 32 per cent of serious claims in 2014–15, while Falls, trips and slips led to 23 per cent of serious claims.
 Between 2000–01 and 2013–14, the median time lost for a serious claim rose by 33 per cent from 4.2 working weeks to 5.6. In 2013–14, the median time lost for a serious claim was 5.4 working weeks for male employees and 6.0 working weeks for female employees.
 Between 2000–01 and 2013–14, the median compensation paid for a serious claim rose by 94 per cent from $5 200 to $10 100. In 2013–14, the

median compensation paid for a serious claim was $10 900 for male employees and $8 900 for female employees. When accounting for wage inflation, however, median compensation paid for serious claims increased by 23 per cent between 2000–01 and 2013–14, directly comparable with the increase in median time lost.
 In 2014–15, the bodily location most commonly affected by injuries and diseases that led to serious claims was the Back (21 per cent). Other common bodily locations were the Hand, fingers and thumb (13 per cent), Shoulder (11 per cent), and Knee (10 per cent).
 The rate of serious claims per 1000 employees is highest in metropolitan areas (10.6 claims per 1000 employees)
 Between 2009-10 and 2014-15, 69 per cent of serious claims in Agriculture, forestry and fishing occurred in regional areas, while 61 per cent of serious claims in Mining occurred in regional and remote areas. In the same period, 85 per cent of serious claims in Finance and insurance services occurred in metropolitan areas.
 Human agencies were the most common breakdown agency for serious claims in metropolitan (13 per cent of all claims) and regional areas (13 per cent), while Outdoor environment (16 per cent of claims) and Road transport (13 per cent) where the most common breakdown agencies in remote areas.

Senate Inquiry into complaints mechanism administered under the Health Practitioner Regulation National Law

January 16, 2017

On 1 December 2016, the Senate referred the following matter to the Senate Community Affairs References Committee for inquiry and report:

The complaints mechanism administered under the Health Practitioner Regulation National Law.

The terms of reference are:

  1. the implementation of the current complaints system under the National Law, including the role of the Australian Health Practitioner Regulation Authority (AHPRA) and the National Boards;
  2. whether the existing regulatory framework, established by the National Law, contains adequate provision for addressing medical complaints;
  3. the roles of AHPRA, the National Boards and professional organisations, such as the various Colleges, in addressing concerns within the medical profession with the complaints process;
  4. the adequacy of the relationships between those bodies responsible for handling complaints;
  5. whether amendments to the National Law, in relation to the complaints handling process, are required; and
  6. other improvements that could assist in a fairer, quicker and more effective medical complaints process.

The focus of this inquiry is the implementation and regulation of the complaints mechanism administered under the Health Practitioners Regulation National Law. Submissions outlining details of individual cases or complaints may assist the committee in identifying broader systemic issues for investigation. However, the committee has no power to investigate, advocate for or resolve individual cases. To protect the privacy of submitters, the committee has resolved not to publish any submissions outlining individual cases

Please note: All correspondence, submissions and other evidence provided to the committee’s previous inquiry into the medical complaints process in Australia is available to the committee for this inquiry. This means that submissions accepted by the committee for its previous inquiry do not need to be re-submitted.

Submissions should be received by 24 February 2017. The reporting date is 10 May 2017.

If you are considering lodging a submission to this inquiry you should consider the guidance on preparing a submission to an inquiry available on the Senate website.

Committee Secretariat contact:

Committee Secretary
Senate Standing Committees on Community Affairs
PO Box 6100
Parliament House
Canberra ACT 2600

Phone: +61 2 6277 3515

Victoria – TAC has developed a website for ‘health care providers”

December 9, 2016

The TAC has developed a useful website for ‘health care providers”.

This page provides useful information, such as updated fees, policies and industry events.

You can also choose your profession from the drop down list to access information

specific to you.

For example the link to IMEs brings up:

Independent Impairment Assessors – TAC – Transport Accident Commission

Independent Impairment Assessors (IIAs) are medical practitioners specially trained

to conduct impairment assessments.

These assessments are required for a person injured in a transport accident, who have

made a claim for impairment benefits,

as a result of sustaining a permanent impairment.

Impairment assessors, play a critical role in ensuring the TAC provides timely and equitable

lump sum benefits to a person

injured in a transport accident.

Becoming an Independent Impairment Assessor

All IIA’s must undergo specific training.  Training is delivered by an accredited training provider

approved by the Minister for the TAC.

The course offers:

  • Administrative information on the assessment of impairment
  • Theory and practice of assessing impairment

For further information about the training course, visit AMA Victoria or email iat@amavic.com.au

Providing services to the TAC

Upon the successful completion of the impaiment assessment training course, you can request

to provide services by directly contacting us.

Fees

The TAC can pay the reasonable costs of impairment assesment service as detailed in the

below fee schedules:

Doctor fights back against Internet Troll

September 29, 2016

We are familiar with various websites that rate those who do independent medical examinations. Some of these posts are incorrect and indeed defamatory.

Here is an example of comments from the workcovervictimsdiary Website.

Those IMEs who totally disregard honesty should be eliminated from the process. Consider having the state refer to an IME doctor rather than the insurer and the whole attitude towards fairness and honesty would likely improve

 Get rid of the (few) nutters doing most of the IMEs. If an IME doctor loses a certain amount of cases then don’t allow them to undertake more IME examinations. The reason these IMEs don’t succeed is because they are either wrong incompetent, dishonest or all three

Dr Alan Jager has sent us a post about a successful application to shut down such a website.  It makes interesting reading

Al Muderis v Duncan [2016] NSWSC 1363 saw the applicant, an orthopaedic surgeon, make an interlocutory application to to restrain the continued publication on the internet of material he alleges is defamatory of him. The defendant had not responded to correspondence and was not represented at the interlocutory hearing.

The application arose against the background of a complaint by a patient to the Health Care Complaints Commission, which was dismissed. A medical negligence claim was also made and dismissed.

Later the patient pleaded guilty to offences of intimidation and using a carriage service to harass, menace or offend. He was convicted and sentenced to four months imprisonment suspended on conditions. An apprehended violence order was made prohibiting the patient from assaulting, molesting, harassing or threatening the doctor, engaging in any other conduct that intimidates him, or stalking him. The AVO made specific reference to operation of a website.

The court made orders as requested by the medical practitioner, including an order directed to the website host registration entity. The website now appears to have been taken down.

Victorian ombudsman damning of work safe agents and some IMEs

September 20, 2016

The Victorian Ombudsman has released a report regarding an “Investigation into the management of complex workers compensation claims and WorkSafe oversight”

 

This report is very critical of practices of WorkCover agent’s particularly with regard to doctor shopping and is unsparing in its criticism of certain IMEs in particular with regard to their bias and poor quality reports. The report is a damning with regard to actions taken by work safe about IME reports that are inadequate. Based on the reports the following recommendations relevant to psychiatrist were made. A copy of the full report is available in publications and a summary is also available.

 

Recommendation 14

Implement changes to the current IME system to:

  1. prevent agents from selectively using ‘preferred IMEs’ or
  2. provide injured workers a choice of the IME with the appropriate speciality, by whom they are examined.

Recommendation  15

Amend its IME complaint handling policy to provide scope for examination of complaints where a worker does not provide consent for the complaint to be provided to the IME, which may include the referral of the matters raised to the IME quality assurance division for intelligence gathering purposes.

 

Recommendation 16

Amend the IME quality assurance process to:

  1. ensure IMEs subject to a high number of complaints are peer reviewed
  2. document the process by which WorkSafe will review an individual claim file where significant deficiencies are identified in relation to an IME’s report, to ensure a worker’s entitlements have not been unreasonably rejected or terminated based on the

The onerous provisions of the Victorian Transport Accident Act have been removed!

August 25, 2016

The Transport Accident Amendment Act 2016 was enacted in mid April 2016 (see effect of changes). The Act reverses the provisions enacted in the Transport Accident Amendment Act 2013 that limited the right of families of people who die or are severely injured in transport accidents to seek compensation for psychological injury.

The requirement that claimants with psychiatric injuries needed to seek treatment for three years before they can bring a serious injury claim has also been reversed. It did not recognise that many people suffering from mental illness find it difficult to reach out for assistance. Furthermore, it was especially difficult for claimants living in rural areas who may have limited access to mental health services.

This is a victory for common sense

American Board of Independent Medical Examiners AMA 5 Training in Melbourne- Who cares

May 26, 2016

I was astonished to receive an invitation from eReports to attend a weekend workshop in Melbourne conducted by Prof Mohammed Ranavaya, president of the American Board of Independent Medical Examiners. The training will be on the transition from AMA 4 to AMA 5.

 

As far as i’m aware there are no plans In Victoria to change from AMA 4 to AMA 5 and furthermore I notice that the section with regard to psychiatric impairment rating is from 345 to 4:30 PM on 23 July, 2016, the Saturday of the week end of the course and last for 45 minutes. Considering that there is virtually no difference between AMA 4 and AMA 5 with regard to chapter 13 what is there to be said? Furthermore no jurisdictions in Australia, apart from in the Northern Territory, use chapter 13. In Victoria and South Australia the GEPIC is used and in other states the PIRS.

 

The cost, from what I could work out is US $595 for the Saturday, the two workshops on Sunday total US$750 and the fee for the examination from 5:30 PM to 9 PM is $995 and for the non-physical examination from 530 to 7 PM is $350. You we please today that if you sign up for everything you receive a $100 discount.

 

The problem of course is that AMA5has been used widely for years apart from in Victoria where no changes are planned to move to AMA 5. I have difficulty understanding why anybody would bother.

More action regarding complaints against medical practitioners

March 23, 2016

There has been action on two fronts with regard to reviewing the current system of medical complaints. The Senate has established a wide ranging review (see below) and AHPRA has provided some insights into a KPMG independent review of that system and processes for managing notifications in Victoria. I reckon I could have written this in my coffee break. It includes such mind-boggling new ideas such as:
better risk assessment
Management of high-risk matters
greater transparency
culture
performance
You will notice that the item to do with “culture” refers to ” address perceptions of being pro-practitioner”. That has certainly not been our experience. Our experiences that you are guilty until proven innocent.
These are astonishing glimpses of the obvious. Go to the section below to read the full document.

On 2 February 2016, the Senate referred the following matter to the Senate Community Affairs References Committee for inquiry and report:

The medical complaints process in Australia.

The terms of reference are:

  1. the prevalence of bullying and harassment in Australia’s medical profession;
  2. any barriers, whether real or perceived, to medical practitioners reporting bullying and harassment;
  3. the roles of the Medical Board of Australia, the Australian Health Practitioners Regulation Agency and other relevant organisations in managing investigations into the professional conduct (including allegations of bullying and harassment), performance or health of a registered medical practitioner or student;
  4. the operation of the Health Practitioners Regulation National Law Act 2009 (the National Law), particularly as it relates to the complaints handling process;
  5. whether the National Registration and Accreditation Scheme, established under the National Law, results in better health outcomes for patients, and supports a world-class standard of medical care in Australia;
  6. the benefits of ‘benchmarking’ complaints about complication rates of particular medical practitioners against complication rates for the same procedure against other similarly qualified and experienced medical practitioners when assessing complaints;
  7. the desirability of requiring complainants to sign a declaration that their complaint is being made in good faith; and
  8. any related matters.

Submissions should be received by 13 May 2016. The reporting date is 23 June 2016.

Committee Secretariat contact:

Committee Secretary
Senate Standing Committees on Community Affairs
PO Box 6100
Parliament House
Canberra ACT 2600

Phone: +61 2 6277 3515
Fax: +61 2 6277 5829
community.affairs.sen@aph.gov.au

AHPRA has provided some insights into the findings of a KPMG independent review of its system and processes for managing notifications in Victoria.

The report recommends actions in five main areas, including a more systematic, data informed approach to risk assessing notifications:

  1. Better risk assessment: need to embed a more systematic, data informed approach to risk assessing notifications not only taking account of the information which is outlined in the notification, but also factors such as a practitioner’s history of notifications, their practice context and who made the notification.
  2. Management of high risk matters: more intensively apply resources to higher-risk notifications, so these cases are investigated thoroughly but quickly.
  3. Greater transparency: interpret and use the National Law flexibly, not narrowly, to support information sharing in the public interest and promote greater understanding and transparency of what we do.
  4. Culture: address perceptions of being pro-practitioner and shift this perception through cultural change, with a greater emphasis on service. We need to drive an open and transparent organisational culture with a clear balance between the interest of patients, public safety and the practitioner to ensure our service culture balances the rights and needs of all stakeholders.
  5. Performance: continue to critically evaluate the causes of delays, especially for high risk and complex cases.

 

 

Bits n’ Pieces

March 3, 2016

I thought you might be interested to see 4 recently written papers

 

 

Statistics from Work Safe Australia about Work and Mental Disorders

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

Expenditures on Psychiatric impairment by Victoria WorkSafe 1/11/2014 – 31/10/2015

December 7, 2015

We operate in a vacuum regarding the impact of our decisions financially. Some recent data from Victorian WorkSafe gives us some idea of the cost in Victoria.

GEPIC psychiatry examinations…………………1310
Cost GEPIC exams…………………………………..$1 325 000

Average cost per examination………………….$1 011.45
Psychiatric claims with entitlement paid…. 33
The total paid for the 33 claims………………$2 502 441.40.
Total cost……………………………………………….$3 827 441.40

 

 

 

NSW Approved Medical Specialists appointments available

August 27, 2015

The New South Wales Workers Compensation Commission  is seeking applications from suitably qualified specialists wishing to be appointed as Approved Medical Specialists for the Commission to undertake assessments of general medical disputes and disputes about permanent impairment. Appointments to the panel of Approved Medical Specialists are made by the President of the Commission. Approved Medical Specialists are required throughout New South Wales, including regional and rural areas and in a range of specialties. An information package outlining the selection criteria and selection process is available on the Commission’s website at www.wcc.nsw.gov.auApplications close 9 September 2015.

Family Court – Psychiatrists Criticised

July 11, 2015

The Weekend Australian article “In the Name of Innocents” (11-12 July 2015) refers to the role of expert witnesses, especially psychiatrists. The clear implication of the article is that some expert witnesses get it wrong, sometimes because of a refusal to accept allegations of sexual abuse against children.

The article highlights the actions of an unnamed psychiatrist in New South Wales who assessed a young girl Lucy in 2007. The article states that her father had begun raping Lucy in his bed when she went on Family Court ordered access visits to his house.

The article goes on to state that revelations about Lucy’s ordeal have raised questions about the Family Court’s heavy reliance on expert witnesses to determine the veracity of sexual abuse allegations.

I have paraphrased the article below.

Social workers, psychologists and psychiatrists are an integral part of the family law system, helping judges to decide what to do in the most diabolical cases. Some worry that too much faith is placed on their findings, particularly in cases involving bitterly contested sexual abuse allegations.

 Former Family Law Council chairman Patrick Parkinson believes an enquiry is warranted in the way sexual abuse allegations are handled by the Family Court. “It’s not about condemning existing practices,” Parkinson says, “these are incredibly difficult issues and we need to find the best way of dealing with them. But there is an overreliance on a very small number of experts in each city.”

 He says psychiatrist can be extremely helpful in cases where there may be mental illness but they are not necessarily the most qualified professionals to assess abuse allegations. “I think it would be a lot better to have child protection services with experience psychologists or social workers with expertise in this field or regular dealing with these cases who can give the court the benefit of their expertise,” he says.

 One eminent Sydney psychiatrist Chris Rikard-Bell, recently told the ABC he believed about 90% of sexual abuse allegations made during a highly conflicted Family Court proceedings were false.

 The claim has alarmed several who work in the family law system especially because Rikard-Bell says he has written up to 2000 medicolegal reports.

 University of Sydney socio–legal research and policy Professor Judy Cashmore says the available studies suggest the level of false allegations is nowhere near 90% and probably closer to 10% to 15%. This is a view backed by another eminent child psychiatrist,Carolyn Quadrio.

 “The real problem is that we don’t have any reliable information, so therefore we have to rely on what we know from overseas research,” Cashmore says. “But it certainly doesn’t support anything like 90%.”

 A Family Court spokeswoman says the court “does not accept the suggestion that 90% of sexual abuse allegations in contested Family Court proceedings are false”.

 “The statement comes from comments made by one expert witness about cases he sees and does not speak of the overall experience in cases before the court.” She says.

 

There were more than 5000 substantiated cases of child sexual abuse in Australia in 2013-2014 according to the Australian Institute of Health and Welfare.

 

Family law barrister Martin Bartfeld says he has been involved in cases that “would make your hair stand on end”.

 

“The fact of the matter is that there are people out there who have an almost religious belief that sexual abuse is a fantasy the children make up,” he says. “But the forensic evidence and the Royal Commission into child sexual abuse doesn’t bear that out.”

 

Cashmore says the difficulty is that many of the children involved in family law disputes are very young and it is hard to obtain from them a reliable account of what has happened. False allegations may not be malicious, but in a setting where all trust has broken down mothers can be misinterpret what may be innocent behaviours.

 “It’s possible that a parent who already has no faith in the other party parent could misconstrue what has happened,” she says.

 Once a child has been repeatedly questioned about suspected abuse, the truth can become even murkier.

 Lucy, now 18 said that her abuse began when she was three years old, the court ordered supervised access visits but after several years they were not supervised and included a weekly overnight stay and half the school holidays. She described her father watching her in the bath, being made to look at adult pornography and sleeping in his bed. She claimed she was taken to a house where another man and her father took photographs of her and the other man’s children naked.

 Her mother recalled her daughter returning from access visits with rashes between her legs and being diagnosed with multiple urinary tract infections. When she was eight years old she was given Child protection classes at school and subsequently told a school counsellor and the New South Wales Department of Community Services was informed. Her mother said she stopped the access visits immediately and asked the Family Court to award her sole parental responsibility although Lucy’s father vehemently denied the abuse. The Family Court asked for a family report to be prepared and the parties agreed to the Sydney-based psychiatrist doing this.

 In his report he wrote “the girl was “very guarded” when she was observed with the father and that she “appeared a little reserved”. When Lucy spoke however, she managed to tell the psychiatrist that “she didn’t want to see her father anymore and that she didn’t want to go to contact”. The psychiatrist reported that the allegations “seemed rather extraordinary”. He said the mother appeared to have “allowed herself to accept ludicrous stories about the child being drugged, bound with duct tape and ejaculated over by the father and for the smell to be on her pyjamas for an extended period of time”.

 The report apparently contained only fleeting references to the alleged violence perpetrated by the father against the mother.

 Earlier, when Lucy with three, the family Court judge was so concerned about the fathers “abusive and controlling” behaviour, he had ruled that any contact between him and Lucy should be supervised.

 That judgement, from April 2000, described the fathers history of drug use and violence, including an incident in which the father had attempted to choke the mother while she was driving, with Lucy in the car.

However the psychiatric report seven years later did not analyse the risk of violence and said the father had “attempted to become rehabilitated”. He recorded comments made about an incident involving the father killing Lucy’s cat. Rather than focusing on whether the father posted unacceptable risk to Lucy, the psychiatrist warned in his report of the risk of supervised access that may cause the father-daughter relationship to “deteriorate and eventually breakdown”.

 He therefore told a court his recommendation was for weekly unsupervised access, which he believed would “quickly” restore the relationship between Lucy and her father and help it to grow.

 The father prescribed counselling that Lucy’s mother “to help her manage her anxiety” but warned that if “further spurious allegations of sexual abuse arise”, the woman should be given a psychiatric assessment and that “the child be placed in residence with the father”.

 The report was so damning that Lucy’s mother says she was advised by her lawyers not to go back to court for fear of losing custody of her daughter. The mother also said that the Department of Community Service investigation was closed for reasons that were not clear.

 The authors of this article (who appear to have a propensity for neologisms) noted that the psychiatrist involved cannot be named because the Family Law Act prevents the naming of any witness even an independent expert. The law also makes it difficult to examine other cases in which the psychiatrist had been involved because names and reported judgements are “anonymised”. They later refer to Lucy saying that she had broken her silence when she discovered that the psychiatrist who “disbelieved” her was still in practice assessing cases for the courts.

 The authors claim to have unearthed another recent case in which two young children were removed from their mother’s care on the strength of the report by the same psychiatrist. The report marked “for judges eyes alone”, recommended “an urgent change of residence for the children”. In it, the psychiatrist said he did not believe alleged sexual abuse by the father “on balance is likely to have occurred”, and that this was “more the anxiety of the mother which has been projected onto the children”. “I believe the only alternative now to the children to be placed with the father, I recommend that this happened immediately and without notice”. This was apparently done as a result of a court order.

 However the actions of the judge were repealed. The full Family Court on appeal said the circumstances of the case had not justified such as drastic step without first hearing from the mother. There were also unresolved concerns about the risk of abuse of the children by the father”.

 However, ultimately, after they sent the case back the hearing by different judge, the court found that an abuse allegations had not been substantiated and there was “no unacceptable risk to the children in the care of the father”. After an eight-day hearing Judge Rees made orders in March for the six year old girl and nine-year-old boy to live with their father. The evidence included the expert report and other testimony.

 Former Family Court judge, and now Australian National University adjunct Prof Richard Chisholm says cases such as these are agonising for judges because the consequences are so tragic when the court gets it wrong. He says often the evidence is ambiguous and uncertain. “It is a terrible thing if a child was brave enough to disclose abuse is disbelieved and has to endure further abuse.” He says. “It is also a tragic outcome if an innocent person is wrongly treated as a child abuser.”

 The head of the Law Council’s Family Law Section, Perth-based Lawyer Rick O’Brien says Judges in the Family Court and the Federal Circuit Court, which handles the bulk of family law cases, are “acutely aware that experts are only witnesses, no more, no less”. “It is the judge’s job to assess the risk based on all the evidence that before the court” he says. “The assumption that John judges simply go along with a single expert underestimate the ability of judges to examine all the evidence and in my experience is wrong.”

 The article concluded by describing the distress experienced by Lucy and after the access was finally halted her ongoing symptoms including nightmares and flashbacks.

Commentary

The article has a legitimate point about the reliance of the Family Court on a small pool of expert witnesses however two cases in which they, by implication, indict the unnamed psychiatrist are not a strong foundation on which to build the case. It may well be that the comments with regard to the case involving Lucy were inappropriate when taken out of context but it appears that the opinion of the psychiatrist was upheld in the second case after a further court hearing.

In my experience many psychiatrists have felt that doing Family Court work is a professional obligation however most have abandoned this area of work. I have enormous admiration for those very few psychiatrists who continue to do this work as it is emotionally draining, enormously time-consuming, frustrating and the sort of articles with the underlying scepticism make this work even less inviting.

My own experience was that again and again I was confronted with mothers making accusations of sexual abuse against fathers and the children were caught in the middle.

The final straw for me was when I assessed a 10-year-old girl who was extremely voluble, friendly and who showed no signs of trauma and described relationship with her father in warm, affectionate terms. By contrast her mother was an extremely tight, rigid and cold woman who sexualised what seemed to me hugs and kisses on his daughter’s cheek. Her rage at her ex-husband was unbounded. However I felt sorry for her and unwisely told her that from my observations of her daughter and her own descriptions of the suspect behaviour I could not accept that this was evidence of inappropriate behaviour. She was very angry and upset.

The following day I received a phone call from her telling her that that very night her daughter told her that when her father kissed her he put his tongue in her mouth. This had never been mentioned before, the timing of it seemed incredible. I completed that report but have not written once since then.

I had seen too many situations where accusations were made against fathers, even grandparents. There is no doubt that such things do happen but some of these accusations involved such things as ritual abuse on altars with young babies involving the father, grandparents and other relatives with dramatic details of use of Satanic imagery and costumes and so forth.

The truth is that most sexual abuse with children is banal, opportunistic and depressing to hear. The effects on most children is devastating. The era of “False Memories” fortunately seems to be behind us, but this also had an effect on my wholehearted acceptance of claims of sexual abuse.

I abandoned any further Family Court assessments. Somewhat facetiously I felt that I much preferred working with criminals because at least I knew I was dealing with people who were honest and reliable! Of course the fact is that most people in the Family Court jurisdiction are struggling with terrible dilemmas and decisions and the use of expert such as child psychiatrists has been regarded as very beneficial by most Family Court judges.

It is noteworthy that the authors of the article make no attempt to ask why there is such a limited pool of experts. The article does make for sobering reading however. The authors should look at this website

The Australian Legislative Ethics Commission

to see its list of disgruntled complaints against a psychiatrists writing reports for Family Courts

 

 

 

NSW MOTOR ACCIDENTS COMPENSATION REGULATION (114) 2 March 2015 – Expert Witnesses

July 9, 2015

The recent NSW regulations, in particular 11(1)a has had an effect on the amount of work in NSW and increases the fee schedule for expert witnesses.  I have included a commentary from McInnes Wilson Lawyers

Section 11 Limit on costs for expert witnesses

(1) Costs are not to be included in an assessment or award of damages in respect of any expert witness giving evidence, or providing a report, on behalf of the claimant in relation to a claims assessment or in court proceedings under the Act, except for costs in respect of:

(a) one medical expert in any specialty (my emphasis) unless there is a substantial issue as to a matter referred to in section 58 (1) (d) of the Act

Section 58 Application

(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as
“medical assessment matters” ):

(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

McInnes Wilson Lawyers

The Regulations retain the existing fee structure with respect to medical treatment and medico-legal services however, provide an increase on the maximum allowable fees.

With respect to medical treatment, Clause 19 states that an insurer is not required to pay beyond what is specified in the Australian Medical Association (‘AMA ’) List of Medical Services,

The maximum fees recoverable for medico-legal services are set out in Schedule 2. These are based on the Schedule of Suggested Fees for Medical xaminations and Reports which is determined by the Law society of NSW and the AMA. There is an increase in medico-legal fees to reflect current market rates. For example, a medico-legal report obtained from a specialist who has not previously treated the claimant and requires an examination has increased from $720 to $1,200. There is also an incentive for parties to obtain joint medico-legal reports by providing a higher recoverable fee (up to $1,600) in an attempt to reduce appointments for an injured claimant.

A further amendment contained within the Regulations is the inclusion of Clause 10(3) which states that the costs of obtaining an initial treating medical report cannot be claimed by an injured claimant’s practitioner if the insurer has already obtained a report and provided a copy to them. If, however, a request has been put in writing for a copy of the report, and the insurer has failed to provide same within a reasonable time, the cost of a second report can be claimed. This restriction does not extend to updated treating reports subsequent to the initial report.

Investigation Reports and Expert Witnesses

Clause 11 of the Regulations maintains the restriction on claiming costs related to expert witnesses and reports.

There is a presumption that only one medical expert in any specialty and two experts of any other kind can be included in an assessment or award of damages.

 

ACT dumps Comcare for its public servants!

March 27, 2015

This from the Canberra Times 25 February 2015

Federal workplace insurer Comcare has been rocked by the loss of one of its biggest customers as the ACT Government moves on Thursday to take its 20,000 public servants out of the troubled scheme.

The territory’s government has lost patience with Comcare after being hit with a premium bill approaching $100 million and is exasperated at the pace of reform to a scheme that can allow public servants to sit at home for decades, in some cases, while being paid generous compensation benefits.

It is nearly two years since a review of the scheme urged sweeping reform to cut down on dubious claims for psychological injuries, payouts for dodgy therapies, doctor shopping and decades-long compensation sagas.

The departure of one of Comcare’s fourth-largest premium payer will intensify the insurer’s woes with Australian Public Service departments increasingly unhappy with the price of membership of the scheme and the outcomes it achieves.

No-one from senior management at the Comcare agency was available on Wednesday to discuss the ACT’s decision, a spokeswoman said.

The ACT will walk away after seeing its insurance premiums skyrocket 180 per cent in nine years – to $97 million for 2014-2015 – and after repeatedly and publicly expressing frustration over delays in getting its injured public servants back to their jobs.

The territory’s Employment Minister Mick Gentleman said the ACT Government now believes it can get better results for reduced expenditure by going it alone, probably with a commercial insurer underwriting the venture.

But it will have to continue paying Comcare for years or even decades to support some of the 540 territory public servants who are off work, claiming compensation and who may never return.

Comcare has turned its financial performance around, from a nadir of a $687 million deficit in 2011-2012, to a surplus of $54 million in 2013-2014, but the improvement has been underpinned by sharp increases in the premiums charged to government departments to cover their public servants.

The Canberra Times understands that some departmental chiefs are now close to open revolt against the system, after having their appeals against spiralling Comcare premiums knocked-back and struggling to find the money from dwindling budgets.

Mr Gentlemen said on Wednesday that his government’s move was not a reflection on the quality of staff or management at the Comcare agency but that the federal workers’ compo laws were no longer right for the ACT.

The minister said the ACT wanted to design a new compensation system that put money into getting public servants back to work instead of paying them to stay at home.

“Rather than saying it’s not working, we believe there’s a better way of doing it for the ACT and that’s the road we’ve decided to go down,” Mr Gentleman said.

“The Comcare system is quite burdensome, not only for claimants but for their employers as well.

“The focus we want to see is recovery and rehabilitation for our staff and getting them back to the workplace.

“The studies show that if you get people back to work earlier, their lives are better in the long run.”

A new system would put time limits on payments for medical treatment and allow workers to step outside the scheme and sue the government in court for lump sum compensation.

But in a move that has infuriated lawyers when suggested in other areas, there will be no compensation for non-economic loss, commonly known as “pain and suffering”.

Mr Gentleman said the process of consulting with workers and unions on the design of the new system had begun.

“We certainly don’t want to take rights away,” he said.

“We’ve got a framework which we want to go ahead with.

“We really want to engage with workers’ representatives and we’ve started that today, we advised them today that we want to make sure the final elements of this are things that they want as well.”

Federal Employment Minister Eric Abetz, whose consent is needed for the ACT’s exit from Comcare, said on Wednesday that the departure was a matter for the territory government but warned that it would not get off the hook for lengthy ongoing claims.

“This is ultimately a matter for the ACT Government to determine if they are to exit Comcare,” Senator Abetz said.

There will be issues of pre-existing claims that will need to be sorted, but the Comcare Scheme will continue as before.”

WA to add no-fault catastrophic injury cover to the Compulsary Third Party Scheme

December 21, 2014

Options to add no-fault catastrophic injury cover to Western Australia’s Compulsory Third Party (CTP) Insurance Scheme.

The CTP Green Paper has been released by the State Government regarding the possible introduction of a no-fault catastrophic CTP personal injury insurance scheme.

The purpose of the Green Paper is to inform the community and seek feedback on the merits, costs and options for adding this additional insurance cover to the State’s existing CTP insurance scheme for people catastrophically injured as a result of motor vehicle accidents.

Submissions can be made from 15 October to 24 December 2014.