APHRA – What We Don’t Know

APHRA – What We Don’t Know

January 26, 2015

I have already written a post about problems experienced by psychiatrists dealing with APHRA ( see 5 September 2013).  More recently, a colleague in Melbourne, an independent medical examiner contacted the forensic section because of concerns over actions taken by  APHRA via the Medical Practitioners Board of Victoria. There had been three complaints from workers to APHRA with regard to the IME’s matter and demeanour. Each had been found to be “lacking and substance”. Following a fourth complaint in late 2014, that has not yet been resolved, the IME was told ‘AHPRA have requested that I undergo a Performance Assessment, which involves 2 peer colleagues sitting in with me during a medicolegal assessment.’

Understandably the IME was concerned that despite three previous complaints having been thrown out, the fourth complaint, that had not been resolved, lead to this action. The IME contacted the forensic section of the College.

The Victorian forensic committee, including myself, did some research including looking at the legislation.

This legislation is interesting because it is not within the powers of the Commonwealth to regulate health care providers so all the states have enacted legislation initiated by Queensland that establishes the structure and function of APHRA and the various regulatory boards including overarching boards for Australia and boards for each state and territory.


4 Application of Health Practitioner Regulation National Law

The Health Practitioner Regulation National Law, as in force from time to time, set out in the

Schedule to the Health Practitioner Regulation National Law Act 2009 of Queensland—

(a) applies as a law of Victoria; and

(b) as so applying may be referred to as the Health Practitioner Regulation National Law

(Victoria); and

(c) so applies as if it were part of this Act.

The most interesting sections are the following:

Part two Section 7

Exclusion of legislation of this jurisdiction

The following Acts of this jurisdiction do not apply to the Health Practitioner Regulation

National Law (Victoria) or to the instruments made under that Law—

(a) the Audit Act 1994;

(b) the Financial Management Act 1994;

(c) the Freedom of Information Act 1982;

(d) the Health Records Act 2001;

(e) the Information Privacy Act 2000;

(f) the Interpretation of Legislation Act 1984;

(g) the Ombudsman Act 1973;

(h) the Public Administration Act 2004;

(i) the Public Records Act 1973;

(j) the Subordinate Legislation Act 1994.

One cannot use these Acts to obtain any information about the activities of APHRA and nor does there appear to be any avenue of appeal!

Section 151 (2) was the section that was used with regard to the Victorian IME. In other words if they find, as they did, that three complaints lacked in substance nevertheless they can use those dismissed complaints as a reason to take further action!

151 When National Board may decide to take no further


(1) A National Board may decide to take no further action in relation to a notification if—

(a) the Board reasonably believes the notification is frivolous, vexatious, misconceived or lacking in substance; or

(b) given the amount of time that has elapsed since the matter the subject of the notification occurred, it is not practicable for the Board to investigate or otherwise deal with the notification; or

(c) the person to whom the notification relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to investigate or otherwise deal with the notification; or

(d) the subject matter of the notification has already been dealt with adequately by the Board; or

(e) the subject matter of the notification is being dealt with, or has already been dealt with, adequately by another entity.

(2) A decision by a National Board to decide to take no further action in relation to a notification does not prevent a National Board or adjudication body taking the notification into consideration at a

later time as part of a pattern of conduct or practice by the health practitioner.

(3) If a National Board decides to take no further action in relation to a notification it must give written notice of the decision to the notifier.

(4) A notice under subsection (3) must state—

(a) that the National Board has decided to take no further action in relation to the notification; and

(b) the reason the Board has decided to take no further action.


Sections 170 and 171 give APHRA the power to require a performance assessment. You will notice that there are two types of assessment, and health assessment and a performance assessment.


170 Requirement for performance assessment

A National Board may require a registered health practitioner to undergo a performance assessment if the Board reasonably believes, because of a notification or for any other reason, that the way the practitioner practises the profession is or may be unsatisfactory.


171 Appointment of assessor to carry out assessment

(1) If the National Board requires a registered health practitioner or student to undergo an assessment, the National Agency must appoint an assessor chosen by the Board to carry out the assessment.

(2) The assessor must be—

(a) for a health assessment, a medical practitioner or psychologist who is not a member of the National Board; or

(b) for a performance assessment, a registered health practitioner who is a member of the health profession for which the National Board is established but is not a member of the Board.

(3) The assessor may ask another health practitioner to assist the assessor in carrying out the assessment of the registered health practitioner or student.

(4) The assessor’s fee for carrying out the assessment is to be paid out of the National Board’s budget.


You will notice that the person or persons doing a performance assessment must be, in this situation, a medical practitioner, not a psychiatrist and certainly not the person experienced in doing independent medical examinations when we know that the very process of doing an IME leads to complaints especially when claimants are unhappy with the opinion..

So we have a situation where complaints have been made about an IME that have been dismissed. Following a further complaint of a similar type the IME has been required to have a performance assessment with no requirement that this be done by a peer.

You will notice that the quote in the letter from the IME refers to “two peer colleagues” doing the assessment, I assumed that a ‘peer colleague’ would be, at the least, a psychiatrist and ideally another IME. This is not going to happen.

The IME has received legal advice and has been told to proceed with the assessment!  A further question is whether the assessment will only be with WorkCover claimants or with other clinical patients, inasmuch as the complaints were only to do with IME work I would expect that the assessment would be with this group, but who knows?



Information received from the College has been that APHRA has the power to order a performance assessment. The College has also raised concerns about the difficulties of the notification system, specifically around medico legal reporting, and the implications and stress this causes practitioners, especially in civil and family court matters. This continues to remain on the agenda for the College when it meets with AHPRA and Medical Board representatives.

The College has also informed us that: AHPRA has a pool or predetermined assessors which they generally contact directly except for when there is a direct need.

What has been our advice?

We have told the IME to have a colleague sitting in on the assessment. We have also recommended that the IME have that colleague present at an earlier session to pick up any possible problems.

We have been astounded by the powers of APHRA especially in view of the level of morbidity in medical practitioners about whom complaints have been made. I have included two relevant articles,

 I have a certain sympathy for APHRA, it is a difficult task but those of us who do independent medical examinations are very much in the firing line. Especially because complainants have ready access to a number of blogs ,for example ‘aworkcovervictimsdiary‘  and the injured workers support network that feed that feed into workers’ hostility towards the WorkCover system and those who work in it. Ironically, in Victoria, I am not aware of any complaints about IMEs  with regard to transport accidents. I can find only one site complaining about the Victorian Transport Accident Commission.







APHRA – What We Don’t Know: 3 comments

  1. Macky Says:

    I’m a workers comp plaintiff lawyer in Vic and I read your post by chance and I’m quite shocked by what is being proposed by APHRA but for different reasons as I am looking at the situation from a different angle.

    I can’t comment on complaints made about IMEs and APHRAs handling of such as I have no knowledge of how APHRA handle such and what their powers are etc. However, putting aside the rights or wrong of whether the IME in question should face a performance assessment, what equally shocked me is what APHRA is requiring to be done in order to do this.

    “undergo a Performance Assessment, which involves 2 peer colleagues sitting in with me during a medicolegal assessment.”

    Are they actually being serious?! Did anyone at APHRA actually think through the implications of this before they imposed this requirement?

    This imposes on some unlucky claimant the requirement of having to undergo an IME assessment with ‘Bob and Barry’ sitting in on it. What claimant will want, feel comfortable or agree to that!

    This will create a very uncomfortable and intimidating environment for the worker being assessed. Hardly conducive to conducting a frank and open exchange between the IME and the worker in order to complete a proper psychiatric medico-legal assessment.

    Medico-legal assessments by psychiatrists by their very nature involve very personal and intimate discussions between the IME and the claimant, regardless of whether it has been arranged by Workcover or the worker’s own lawyers. It not something to be conducted in front of a crowd of on-lookers.

    Nothing against the IME concerned, but if I was the worker and it was me being assessed I would find Bob and Barry sitting in as observers extremely uncomfortable and quite intimidating.

    What happens if the worker(s) refuses to participate in the examination under these circumstances (I probably would)? What APHRA are requiring to occur at the assessment is likely to lead to another complaint by a worker!!

    My suggestion would be that this IME (or the College) should be pointing out to APHRA the reality and the wider implications of what they are requiring to be done and that this imposes a adverse situation on a claimant who has to undergo an IME assessment under such mandated circumstances. If APHRA feels that this IME has to be performance assessed they should be finding an alternative way to do this as what is being proposed, to me, is highly inappropriate. It’s just fraught with too many potential problems and further grounds for complaints.

  2. John Says:

    It’s a concerning situation for the independent medical examiner involved. APHRA are in a difficult situation in some respects also as they have to be seen to be taking complaints seriously but at the same time sorting out what is a legitimate complaint or pattern or complaints against an IME as opposed to a claimant using the complaint process to satisfy what are really their grievance against the entire WorkCover system.

    Its interesting that complaints about IMEs with regards to workers compensation are more common.
    I recall there was one complaint about the conduct of a psychiatric IME with regard to transport accident claimant that got quite a bit of media attention before Xmas. This may well be the exception.


    However I think what made this so ‘news worthy’ was more against a growing awareness in both the media and the community that victims of sexual and domestic violence often aren’t necessarily treated the best in ‘the systems’ rather there being anything particularly news worthy about general grievances about IMEs by TAC claimants.

    I suspect complaints against IMEs will only continue to increase and I think this is as much a symptom of members of the public are much more prepared to take their grievances to the relevant authorities or the media than they had been in the past. In this respect IMEs are probably not alone, the public is much prepared to “exercise their right to complain” against all manner of people these days no matter how trivial or baseless the complaint.

    I also firmly believe the Victorian WorkCover Authority also have start to take much more responsibility. I am well aware that when claimants contact WorkCover with grievances about independent medical examinations they are told “nothing to do with us” “make a complaint to APHRA” (typical duck shoving by the VWA) when the claimant’s complaint had its genesis in the IME process and not the independent medical examiner themselves. Say for example when the claimant is unhappy about an opinion provided by an IME because critical information and documents were withheld from the IME, whether by incompetence or design, by claims agents or VWA panel lawyers and this has adversely effected the opinion given by the IME which in turn has lead to an adverse consequence for the claimant. This is more appropriately a complaint about WorkCover’s conduct and not the conduct of the independent medical examiner.

  3. Peter Sharman Says:

    You might be interested to read the discussion on WorkCover Victims Diary blog in response to this article

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