Michael Epstein - Civil Forensic Psychiatry

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.

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.

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

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.

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.

Work Stress 2013 – Statistics from Safe Work Australia

July 8, 2015

This is the executive summary from this, the first document of its type I have seen (click here to see the complete document). You can see why all governments put obstacles in the way of claimants, with specific wording eg the specific injury rather than a specific injury (Queensland and South Australia), different thresholds for psychiatric as opposed to physical injury (all states) and exclusions, in South Australia no compensation for non economic loss. Note that general clerks, police officers and school teachers accounted for the majority of ‘work pressure’ claims. i have also included sub-categories of ‘work stress’ for your information.

Executive Summary

Sub-Categories of Work Stress

The mechanism of Mental stress is assigned to claims where an employee has experienced an injury or disease because of mental stress in the course of their employment. Mental stress includes sub-categories distinguished by the nature of the actions, exposures and events that might lead to disorders as specified. The sub categories are:

ComCare changes concerns

July 7, 2015

Concerns are still being expressed about this bill. The most recent from the Law Council of Australia in May 2015. The Council had a number of specific concerns to do with various matters. The matters most relevant to us are:

New Victorian Wrongs Act regulations 2015

July 1, 2015

The WRONGS (PART VBA CLAIMS) REGULATIONS 2015 has some relevance to forensic psychiatrists. Go to Resources to see the details of the changes.

The Wrongs (Part VBA) Claims Regulations 2015 prescribe forms and other matters for the purpose of Part VBA and came into operation on 9 May 2015 and revoked the Wrongs (Part VBA Claims) Regulations 2005. The changes do not appear significant in essence eg psychiatric injury must not have arisen from physical injury, but in relation to certificates of assessment of degrees of impairment under sections 28LN and 28LNA of the Act, the 2015 Regulations prescribe Forms 1 and 2 of Schedule 1 . After examining the claimant, you must certify:

The 2015 Regulations are said to introduce the criteria that in relation to the degree of permanent impairment resulting from a psychiatric injury and symptoms the approved medical practitioner must certify that the psychiatric injury has not arisen as a consequence of, or secondary to, a physical injury. Any secondary psychiatric injury must be disregarded for the purposes of the Certificate of Assessment. I thought we were already doing that

The 2015 Regulations also prescribe Form 3 in Schedule 1 as the correct form to be used for a request to waive assessment of impairment; and Form 4 in Schedule 1 as the correct form to be used for providing the prescribed information. There were previously no forms provided in the 2005 Regulations. This is of little interest to us.

The 2015 Regulations add the following prescribed information for the purposes of section 28LZA of the Act to what was previously prescribed in the 2005 Regulations:

The 2015 Regulations also prescribe Form 5 in Schedule 1 for the correct form to be used for a Notice of Referral of Medical Question to Medical Panel. There was no such form provided in the 2005 Regulations. The medical question in Form 5 is to be stated as follows:

does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level

A method to make the GEPIC WPI more precise.

June 30, 2015

As we use the median method to find the class that most reflects a centralising tendency, similarly we can use the Severity rating in the same way. This method has no official recognition. If you use it don’t record it on any template. Rather than just using the severity rating for the median class, use it for each class.

Then determine the median severity of all the classes in the median class. .For severity ranges in classes outside the Median Class, the rule is to adjust ratings in any class below the Median Class to the Low range in the Median Class and for any ratings in classes higher than the Median Class to the High range in the Median Class.

If there is no clear median eg L L L M M H where the 2 middle letters are L and M, then the WPI is a percentage between these 2 ranges, in the example above if the severity ratings in order were L L M H H H, the final WPI is between the range for medium and the range for high, I,e, 16-18%. The final figure is for you to decide.

Psychiatric Impairment Assessment in South Australia – a dog’s breakfast

June 23, 2015

The South Australian government has chosen to use the GEPIC both for motor accident claims and for workers compensation claims. This should make life simple however legislation is not that easy. The changes to the Civil Liability Act have incorporated the system called Injury Scale Values from Queensland (apparently originally from the UK) that is a means of converting impairment into what I would regard as disability. See the Regulations. It is up to the medicos to determine impairment and then on the basis of their assessment together with a variety of other factors a person is given an ISV number that determines whether or not they gain access to a variety of other benefits including economic loss, noneconomic loss, so-called loss of consortium and access to other services. This has meant that the use of the GEPIC changes if one is assessing a South Australian ReturntoWork claim as opposed to a South Australian MAC claim.

For a South Australian ReturntoWork claim the usual procedure, as with any method of psychiatric impairment is followed. That is, one determines the whole person psychiatric impairment and then eliminates impairment unrelated to the work injury that is either pre-existing or has occurred since the work injury and also eliminate impairment caused by “Consequential Mental Harm” that means impairment secondary or consequential to physical injury, one is left with a percentage figure due to Pure Mental Harm, in other words impairment that is not secondary or consequential to physical injury. This is all fairly straightforward.

Because of the nature of the legislation with the Motor Accident Corporation those apportionments have to be done before you actually get to work out the level of impairment. In other words you must strip out impairment unrelated to the accident, impairment due to “Consequential Mental Harm leaving you with symptoms as a result of “Pure Mental Harm” such as from post traumatic stress disorder. You then determine the class of impairment for each of the six mental functions, only taking into account those symptoms arising from Pure Mental Harm. The median class is then regarded as the GEPIC rating. The GEPIC rating is then used to determine the ISV Item number ranging from, at the lowest 13 to, at the highest, 10. Each item number has a range of numbers within it but it is not for the psychiatrist to determine that.

I have now run two training sessions with regard to the South Australian ReturntoWork method and one with regard to the Motor Accident Impairment Assessment Scheme. It is interesting that in all three sessions using cases in groups there has been considerable consensus. Impairments assessments will commence on 1 July 2015 so it will be interesting to see what transpires.

Does Psychiatry Have a Future?

June 8, 2015

When I started my psychiatric training it was a time of great ferment. Psychiatry seemed to be at the cutting edge of new discoveries. It was a time of psychedelic drugs, anti-psychiatry, RD Laing, community mental health centres and a cornucopia of new drugs for treating anxiety, depression and psychosis. Psychoanalysis was on its last legs, the biological substrates of psychiatry were becoming predominant, psychosurgery was out, ECT was on the nose, particularly after “One Flew over the Cuckoo’s Nest” (who could forget nurse Ratched).

Since then, sadly, psychiatry has become about as exciting as rehabilitation medicine. It is disheartening to think that psychiatrists are now just part of a team whose only responsibility seems to be medication. All the promise of neurotransmitters has come to nought. We still test new antidepressants for efficacy against nortriptyline, it is like comparing a new Ford against an FX Holden. More and more the focus in psychiatry has become early diagnosis of psychosis but this has also proved to be a chimera. The mental health industry badgers government irresponsibly talking about one in four people having mental illness when the true figure for severe mental illnesses is a prevalence of 3% that has remained unchanged. The one in four referred to people who have troubles, so-called mental health problems leading to a plethora of “helpers”, lifestyle coaches, counsellors, grief counsellors, relationship counsellors, psychologists who do CBT, EMDR and various other acronyms.

I have been dismayed by the role psychologists have played in advising general practitioners about what medication to use. In particular quetiapine 25 mg now routinely prescribed for anxiety.

A recent article in the New Yorker http://www.newyorker.com/magazine/2015/05/18/lighting-the-brain ( I can’t make a direct link, you will need to cut and paste this) has started turning all that pessimism around. The article focuses on the work of Professor Karl Deisseroth, a neuroscientist with a large lab at Stanford who is still a practising psychiatrist. Karl Deisseroth, now 43 has made two amazing discoveries that have the promise to transform psychiatry and allow treatment to become very specific. These two changes include Optogenetics, a technique developed by others that he has refined. “This is a technology that render individual, highly specific brain cells photosensitive and then activates those cells using flashes of light delivered through a fibre optic wire. It gives researchers unprecedented access to the workings of the brain, allowing them not only to observe precise neural circuitry in lab animals but to control behaviour through the direct manipulation of specific cells. The technique allows researchers to trigger activity of cells at the speed that the brain actually works but also to target cells and regions, like the amygdala, where there are mixed populations of hundreds of kinds of cells allowing a previously unthinkable level of experimental precision.”

This has not yet been used on humans but he is already using a variety of other techniques on his patients including vagus nerve stimulation for the treatment of treatment resistant depression with benefit. He only takes on patients who have received no benefit from other treatments. He adapts knowledge gained from his optogenetic experiments to use on patients in his clinical practice. He is currently treating an elderly man with severe depression associated with Parkinson’s disease. He had worked on mice who showed a correlation between depression like states and a dearth of dopamine producing neurones. He had prescribed his patient pills that acts on the dopamine system and it had proven to be very effective.

He has also been instrumental in developing another technology which also has amazing possibilities. He has developed a technique for displacing the fats and water in the brain with hydrogel that allows the brain to become transparent. The director of the NIMH has written a blog about this, go to http://www.nimh.nih.gov/about/director/2013/new-views-into-the-brain.shtml to see a video of this in action.

The New Yorker article goes on to say “increasingly, neuroscientist believe that the key to understanding how the brain works lies in its overall neural circuitry, and the way that widely separated brain regions communicate through the long-range prediction of nerve fibres. In this view, mental disorders resulting from the shorting out or disruption of the largest circuit wiring of the brain-and it is in defining and describing me circuit connections that Karl Deisseroth’s innovations promise to be especially helpful.

I urge you to read this article and like me, it may lift your spirits with regard to our demoralised profession. It does seem that we have a future!

When do you express an opinion to a claimant?

June 6, 2015

I saw a young woman for a solicitor, she had no money and the solicitor had asked me to see her briefly to decide whether or not to proceed to a full interview. Alison was a thin anxious woman with 2 children who she brought to the interview, fortunately they were quiet and not disruptive. Alison had a subdued, meek, almost child-like manner and seemed younger than her years.

Her story was unusual. She was suing a local hospital for having done a ‘therapeutic abortion’ that had been successful and for which she had given full consent.. The unusual part was that she had a bicornuate uterus and had a foetus in each component. The abortion had killed the foetus in one horn but not the other! This emerged as it became clear she was still pregnant. She proceeded to give birth full term to a healthy boy who was at the interview.

I was confused, was her claim that the hospital staff had not terminated both pregnancies? That seemed a reasonable claim. No, it was that the termination had been done at all,as her son did not have a twin.

I felt sorry for her, her situation, having to cart 2 kids around on a hot day etc.

Silly me, I had decided that there could be no claim on the basis of what she said, recognising I’m not a lawyer.

“ I am not a lawyer but it seems to me that if you signed a consent form, you can’t complain that they did an abortion”

Well, she swelled in size with outrage, her voice rose and she screamed at me, “ I was told I’d get hundreds of thousands of dollars, you’re a bloody idiot, I’m not going to say here and listen to this crap” . With which she got up and swept out of the office with her 2 kids. I was a little shell shocked. I told the solicitor what happened, she seemed un-fussed.

Now what I say is something like, ‘ I am not sure, you have given me a lot of information, I need to sit down and think it through.’

There are rare occasions when I strongly urge people to seek treatment and offer to speak to their GP. I negotiate with claimants about irrelevant history that I may exclude or make anodyne, eg ‘ my mother died of AIDS.’ Please don’t mention it, no-one in the family knows. It was not relevant to the work related back injury so it became ‘ his mother died of a chronic disease.’

I never comment on whether or not the claimant should or should not make a claim. A colleague told me of her distress when seeing a patient making a claim against a close friend of hers, a surgeon. I asked her what she did, she told me she had tried to persuade the claimant to abandon the claim!d ‘ I told him how much good my friend did and how upset he would be if he was sued.’

I told her that she had put herself in jeopardy, her opinion was now useless and she had behaved unprofessionally.

APHRA – A Re-Think

April 20, 2015

I had an interesting discussion with a member of the Medical Board expressing my concern about board procedures, in particular review visits. He mentioned that this was a real dilemma and there was some uncertainty amongst members of the Medical Board about how best to proceed with what is clearly a very important issue. The issue is highlighted by a paper on the website entitled:

Prevalence and characteristics of complaint-prone doctors in private practice in Victoria: Marie M Bismark, Matthew J Spittal and David M Studdert MJA 2011; 195: 25–2

Among doctors in private practice in Victoria, 20.5% had at least one complaint over the decade (to the Victorian Health Services Commissioner). Among doctors who were the subject of a complaint, 4.5 had four or more complaints, and this group accounted for 17.6% of all complaints. Surgeons and psychiatrists had higher odds of being in the complaint-prone group than general practitioners. Doctors trained overseas had lower odds of being complaint-prone than those trained in Australia.

The Medical Board has extensive data about a small group of doctors, possibly less than 5% who are subject to multiple notifications. The problem with many of these notifications is that they are difficult to establish. The concern of the Medical Board is the frequency of similar complaints regarding the same doctor. The question is what can be done in the interests of the public and to some extent the interests of the profession. Recently developed has been here review visits these are clearly problematical, the question is what else can be done? I began to see APHRA in a more positive light.

Proposed Comcare Changes – 25 March 2015

April 14, 2015

There will be significant changes to Comcare if this act is passed. The matters of major relevance to forensic psychiatrists include:

On 25 March 2015, the Minister for Employment, Senator the Hon. Eric Abetz, introduced legislation into Parliament to amend the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). The SRC Act underpins the operation of the Comcare scheme.

The Minister’s second reading speech (amended and highlighted when required).

A large body of evidence based research has established that many health problems can benefit from work based rehabilitation and an earlier return to work. The compensation payment system has been restructured to provide targeted financial incentives to return to some form of work as soon as safely possible.

Systemic incentives to remain on workers compensation for extended periods will be removed by providing for more graduated reductions in income replacement payments and reducing compensation payable where an injured employee refuses employment while having a capacity to earn in suitable employment.

There will be targeted support for injured employees. To reduce the financial stress of illness and injury, the scheme will now provide for provisional medical payments of up to $5,000 before a claim is determined. The employer will have immediate rehabilitation responsibilities. Employees will no longer be required to utilise accrued leave before receiving these payments.

Professional, monitored, post-injury care will be provided to employees for the first three years of their injury, with uncapped, long-term or life-long care available to the catastrophically injured after this time.

Seriously injured workers will have the maximum lump sum payment amount increased from $242,000 to $350,000.

For those with less serious injuries, these payments will be more accurately scaled to allow for higher payments for those who need more support?

Time frames will be introduced for determining claims and resolving disputed claims, as well as improved information-gathering powers. Employers will also be required to lodge claims more quickly, and within specified timeframes, once they are notified of a claim.

To ensure that there are no gaps or inequities in the payment of entitlements to workers nearing pension age, eligibility for income replacement will be linked to the national age pension age and the five per cent reduction in compensation payments for employees accessing superannuation benefits will be removed.

The changes mentioned below may well have a significant effect on those who Comcare claims.

The bill will ensure that system deals only with employment-related injury and disease as was the original intent of the legislation. This intention has been watered down by judicial interpretations leading to increased premiums and pressures on the viability of the scheme.

Amendments to the act will distinguish more clearly between work and non-work related injuries and limit the payment of compensation only to employees with work injuries. There will need to be established a clear causal connection with work before compensation is payable.

The amendments will also clarify the matters to be taken into consideration for psychological claims and introduce new thresholds for specified pre-existing conditions such as heart, brain and spinal injuries to ensure that the scheme is accepting liability for conditions that are work-related.

As the workers’ compensation system was never designed to prevent employers taking reasonable action to manage their employees, the proposed amendments will clarify the range of reasonable management actions that, when reasonably undertaken, should not give rise to compensation claims.

In order to address rapidly escalating scheme costs and ensure the long-term viability of the scheme, Comcare will establish schedules that specify the amounts payable for medical treatment and medical reports, and legal services obtained by claimants. Currently, there are no limits on the amounts that Comcare now pays for these items.

Schedules will not only reduce lengthy dispute time frames but provide greater certainty and transparency for service providers and claimants (and reduce payments to medical providers and for medical reports).

The integrity of the scheme will be underpinned by a three-stage sanctions regime in which employees who do not meet their medical treatment and rehabilitation obligations will have their compensation rights suspended or cancelled.

WorkSafe Victoria, problems, doctors and political shenanigans

April 10, 2015

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

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

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

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

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

The biter bit or nil carborundum bastardum

April 8, 2015

Please note the attached invoice cannot be paid by the Agent of the Victorian WorkCover Authority as the report requested was a Clarification report and no additional information was requested

J G | Senior Case Manager – Authorised Agent of the Victorian WorkCover Authority

There is no such thing as a clarification report. A report was requested and issued and at no time was it stated in the request that no fee would be paid. The report, if unpaid, was obtained by fraudulent means and I reserve my rights to report this matter to WorkCover and seek a legal remedy if it remains unpaid by close of business tomorrow.

Please note that I have not received payment and as advised I am referring this matter to the VWA, the Medicolegal Group and to the AMA. I am seeking advice regarding debt recovery. Costs of debt recovery will be borne by your company. No further supplementary reports will be undertaken for your company until this invoice has been paid.

This account has been paid however will take a few days to arrive in your account given the Easter period

J G | Senior Case Manager – Authorised Agent of the Victorian WorkCover Authority

ACT dumps Comcare for its public servants!

March 27, 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.”

Richard III and work capacity

March 26, 2015

A leaked email from WorkCover, describing the last Plantagenet king as a “lazy bastard” and “just pretending to be dead” has been strenuously defended by WorkCover.

The company that carried out the Work Capability Assessment test on the deceased king, whose remains were found in a car park in 2012, controversially found him capable of working in an office, or performing light manual labour such as driving a forklift truck.

“Being a withered pile of smelly old bones that have been rotting under a car park for several centuries, is not in itself a reason to sit around all day not working. We have recommended that the King be dug up immediately and placed on a back-to-work scheme, and have his benefits sanctioned for being a blood-sucking, lazy old bastard.

The Bishop of Leicester, who led the king’s re-internment ceremony has criticised the ruling, saying:

“This is absolutely disgusting. The man’s been dead since 1485, and is in no state to pack people’s shopping bags or sweep up popcorn at the Odeon. He wouldn’t even make a good security guard for a sleepy village shop. Anyway, we’ve just buried him, and we’re not digging him up again. The poor old corpse won’t know if he’s coming or going. Leave him alone,”

Zahr and the issue of malingering – psychologist vs psychiatrist

March 16, 2015

I have quoted extensively from a judgment in the NSW Supreme Court (Zahr v TAL Life Limited) where the judge has written extensively about the issue of malingering. This raises important questions about our role. Do we need to learn to administer psychometric testing to be regarded as credible? Certainly the psychiatrist in this case did not come out well.

The real point of difference between Dr Smith and Mr Haralambous is that Dr Smith accepted at face value the plaintiff’s account of his history and symptoms, while Mr Haralambous, fortified by the results of the extensive neuropsychological testing that he administered, was not prepared to do so. Underlying the issue exposed by this difference is a social and economic problem that has become endemic in contemporary western society. It frequently arises in claims for compensation or other financial benefits by persons who allege that they have suffered psychological illness or injury.

26 That problem is malingering. It is not itself a mental illness. Its essential feature is the intentional production of false or exaggerated physical or psychological symptoms, motivated by external incentives such as the obtaining of financial compensation. The problem is said to be prevalent among combat veterans who seek compensation and benefits for disorders such as Post Traumatic Stress Disorder, but it exists in all areas where compensation is sought. One study apparently reported that 53% of treatment-seeking (especially compensation-seeking) veterans, ‘exaggerated symptoms or malingered on psychological tests’: T Freeman, ‘Measuring Symptom Exaggeration in Veterans with Chronic Post Traumatic Stress Disorder’, (2008) 158(3) Psychiatry Research 374.

27 For some time, there has existed a substantial body of literature relating to the issue of symptom validity and mechanisms for testing claims, especially by those seeking compensation. Some of the literature includes G Young, ‘Malingering, Feigning and Responsive Bias in Psychiatric/Psychological Inquiry’, (2014) 56 International Library of Ethics, Law and the New Medicine 401. K Brauer Boone, Assessment of Feigned Cognitive Impairment: A Neurological Perspective, (2007 Guilford Press). L Binder, 1992, ‘Deception and Malingering’, in A E Puente & R J McCaffrey (eds), Handbook of Neuropsychological Assessment, a Biopsychosocial Perspective, (1992 Plenum Press, New York, pp. 353-374). E Eggleston, ‘Consideration of Symptom Validity as a Routine Component and Forensic Assessment’, (2011) The New Zealand Psychological Society. H Hall, Detecting Malingering and Deception: Forensic Distortion Analysis, (2nd ed 2000, CRC Press). T Merten, ‘Symptom Validity Testing in Claimants with Alleged Post Traumatic Stress Disorder: Comparing the Moral Emotional Numbing Test, the Structured Inventory of Malingered Symptomatology, and the Word Memory Test’, (2009) 2 Psychological Injury and Law 284.

28 Much more of the literature was referred to by Mr Haralambous. He stated, and I accept, that it is now widely recognised that, where a claimant seeks a financial reward on the basis of the diagnosis that his or her account is designed to elicit, the opinion formed by a medical practitioner, even by a highly trained psychiatrist, on the basis of the claimant’s self-serving account given in a clinical interview, may be problematic.

29 It is a fact of life that, unlike judges operating in a courtroom, who are assisted by an adversarial process and time-honoured techniques for testing the truth of a witness, (or interrogators in other contexts who use more brutal methods), medical practitioners are not as well suited, by nature, training or circumstance, to detect lies, dishonesty, exaggeration or embellishment. The usual, and entirely understandable, starting premise of a medical practitioner is to accept and believe a patient’s account. Medical practitioners are not prosecutors and most are probably uncomfortable adopting an inquisitorial role. They are not trained in the art of cross-examination. And they are not exposed on a daily basis to persons who lie and cheat for financial reward.

Dealing with fucking up

March 7, 2015

One of the things that makes medicolegal work so interesting and so challenging is appearing in court. Everyone, especially those who have just started working in the area worry about making a mess of it.

I estimate I have been a witness in court more than 2000 times. Well, on Tuesday it was a stuff up. I am getting pretty good at avoiding the usual hurdles, saying too much, getting argumentative, lack of preparation and I dress conservatively and appear on time.

Let me digress a little and talk about preparation. Preparation obviously involves reading my report, seeing any potential problems and correcting them where possible, checking on words that I may have put in the report that I do not really understand, and sometimes being a little creative. There was one case that turned on the issue of when pethidine was known to cause malignant hypertension when used with MAOIs. Instead of chucking out MIMS annuals, I keep every fifth one. In this case I could demonstrate that this interaction was well-known at the time the victim, a psychiatric patient, well known to be addicted to pethidine, had been prescribed an MAO inhibitor. I made photocopies of the relevant pages both for when the event occurred and from the MIMs annual five years before that. I made copies for the judge and for both sides.

When I asserted that this interaction was well-known at the time the event occurred, the judge in a kindly patronising way told me, “that’s all very well Dr Epstein but we have had expert evidence to the contrary so it really is a case of your word against the other expert witness isn’t it?” It was with some pleasure that I produced the photocopies. The case settled that afternoon.

I realise I am avoiding talking about my stuff up so let me tell you about another stuff up while I’m still on a roll. I appeared in a “hot tub” in Sydney in 2013 with two other psychiatrists about a man claiming income protection insurance payments due to a mental illness preventing him working. His illness had commenced in 2000. The highly regarded psychiatrist from Sydney was an impressive witness-until he was told “there is nothing in your report doctor about what happened to this man from 2000 onwards? Why is that?” This was an astonishing lapse. To his credit the expert said “I have no explanation, it’s clear I made a mistake.”

Let’s get back to my stuff up. This was a man who had worked in his father’s construction business from school and had married and had two children. He had become a project manager but was still “on the tools” and expected to take over when his dad retired. In the same year his marriage broke down, his father borrowed a large sum of money from him because of a “temporary financial situation” and a week or two later his sister told him that the business was bankrupt. His father promptly had a breakdown and was hospitalised and he was left to deal with the train wreck. An administrator was called in, he had to assist the administrator, try and complete the jobs they were already doing and deal with subcontractors.

About three or four months later, when the dust had settled he finally had an inguinal hernia repair that he had been delaying because of the pressure of work. There were a host of other pressures on him over the next 10 years or so including a drug dependent son who assaulted him and his new partner, alcoholism and various physical health issues.

I saw this fellow four times from 2007 onwards. Each time I wrote a comprehensive report but I failed to pick up that the critical issue was whether or not his mental state was contributed to by his employment. I had detailed information about a host of other things that happened to him but what I wrote above was pretty much all I had gathered about the critical three or four month period when the business failed.

In cross examination I was asked such questions as “how many projects had to be completed?” and “how many subcontractors were involved?” and “what other pressures were on him at the time coming from the business?” and “what is your understanding of the role of the administrator?” and “when did he and his wife separate and what was their relationship like after the separation?”. I hesitate to go on with the other questions because it is too embarrassing. The fact is I did not have any answers to these questions because I had not asked them.

My report contained only one paragraph to do with the collapse of the business and this paragraph included a quote “he was left to pick up the pieces” that I had lifted from a psychologist’s report but that I had never explored.

What I found particularly annoying was that I had seen this man four times and I had never picked up how inadequate was my history.

When I stuff up in court I go through about 24-48 hours of distress until my ego gets over it and I can then work out what I did wrong and how to make sure I don’t put myself in that position again.

The lesson I learned here was to focus on the main game, the history of the accident or injury that led to the claim. The rest is important but unless I have that information, it is irrelevant. It’s like doing all the preparation for a lecture and not turning up.

I walked out of the courtroom feeling like an idiot and for a short moment was tempted to waive my witness fee but fortunately sanity and greed prevailed.

APHRA – our enemy or our friend?

February 19, 2015

I am sure that APHRA would regard itself as neither. APHRA regards its role as protecting consumers. No one would argue that there is a legitimate concern about the practices of a small number of health-care providers. My experience and that of others is that APHRA does acknowledge that performance assessment can be a stressful experience for practitioners however our concern is that a significant number of complaints about independent medical examinations are from disgruntled people who want to lash out at the IME if the opinion provided is not acceptable.

Doctors are frustrated by the trivial nature of many of the complaints, they are frustrated by the time and emotional energy expended in responding to these and by the economic cost.

The recent issue of Australian Medicine of 16 February 2015 on page 8 has an article about “Flawed Complaints Process Undermines Health and Care”. Their article makes the point that research published in BMJ Open Has Found Significant Levels of Depression and Anxiety amongst Medical Practitioners Who Have Had a Complaint Made about Them. The Study Involved 7926 doctors and found that 70% of those who are currently or as recently the subject of a complaint or moderately or severely depressed and 15% reported moderate or severe anxiety.

Alarmingly, doctors who currently or recently had complaints against them were twice as likely to consider hurting themselves or contemplate suicide.

This study found that not only did being the subject of a complaint affect a doctor’s health, but it could also have a significant impact on how they practised. the vast majority of doctors involved reported adopting a defensive approach to how they practised, 20% felt victimised, almost 40% felt bullied and 27% took more than a month off work.

Dr Browne, the senior medical officer with Avant said the results were “virtually identical” to a similar study co-conducted in Australia in 2006. She said the way patient complaints were handled in Australia risked making doctors “a second victim” causing them an enormous amount of stress and undermining their health.

The AMA has called for an overhaul of the system. The complaints system is being examined as part of a review of the National Registration and Accreditation Scheme for Health Professionals in both the AMA and Avant have made submissions urging major changes in the way complaints against doctors are handled.

The AMA has called for improved triaging of complaints and notifications, greater transparency and fairness, and changes to make the scheme more responsive to medical practitioners and accountable to the medical profession. The notification process was noted to be arduous and lengthy with more than 30% of investigations to open after nine months.

The AMA noted that it was disappointing that the findings of the review had been pre-empted by the Australian Health Practitioner Regulation Agency, which last year released an action plan of changes.

APHRA wanted more information to be provided to complainants, and a greater focus on improving the experience for consumers, when “in fact, efforts need to be directed to improving the investigation process-that is, the practitioner experience. Medical practitioners and consumers, equally, want a regulatory system that is is timely, fair, transparent and effective.”

I have provided a summary of this report. The recommendations are focussed on ‘the consumer’ although Recommendation 7 mentions health practitioners, burrowing down we find a sub-set of recommendations including in the short term:

In relation to NFA (jargon for cases where there is to be no further action). Particularly where there are issues but they do not reach the AHPRA threshold, create an opportunity for notifiers to contribute to the collective patient voice and lead to improvements down the track, translating cumulative issues into recommendations for improvement. So while an individual complaint may not have a result for the particular consumer, it contributes along with other complaints to improving the system.

The assumption is that although there is to be no further action, the complaint has some legitimacy but did not reach the threshold.

Provide more publicly available and easily accessible information about individual health practitioners.

There is no mention of whether or not this would include health practitioners about him complaints have been made as opposed to health practitioners who have had adverse findings.

You will also note that recommendation 8 talks about measures to increase APHRA’s engagement with consumers and the community but no mention about better engagement with health practitioners.

Recommendation 1: Provide better information on the website, using professionals with skills in health communication with consumers working with a consumer panel

Recommendation 2: Develop more meaningful communication with consumers throughout the notification process

Recommendation 3: Improve the initial contact and invest in skills and expertise at this first point of contact.

Recommendation 4: Build on current collaboration between AHPRA and the OHSC ( Office of the Health Service Comissioners) to develop seamless complaint management and resolution across the two organisations. This should be based on the ‘consumer

journey’ and seeking to address the full range of issues in the consumer’s complaint in the most timely and complete manner.

Recommendation 5: Use process redesign and lean principle to explore options for swifter resolution and more timely management of notifications.

Recommendation 6: Reconsider the role of the consumer as a notifier in the ‘model of practice’.

Recommendation 7: Ensure that complaints and notification contribute to systems change and that is demonstrated to the community and to health practitioners.

Recommendations 8: Consider measures to increase AHPRA’s engagement with consumer and the community

The IME complaint I have mentioned previously is a good example of this process. The IME has written to APHRA requesting information about the assessors, issues regarding confidentiality and the provision of a support person.

The response from the Manager Notifications with APHRA stated that on 5 February 2015 the Medical Board of Australia formed the relief that the way the IME practices may be unsatisfactory and decided to require the IME to undergo a performance assessment. The Board noted that the issues raised by two complainants were similar (see below). The IME was informed that both assessors are psychiatrists one of whom is an IME, the date of the assessment was provided and indicated that a schedule would be forwarded. In response to a request to have a support person the IME was told that the support person can remain present:

Surprisingly the writer goes on to show say “however, to ensure the independence and objectivity of the assessment, the support person is not present during the interview sessions of the practitioner and his/her patients.”

The letter goes on to say “The Board will decide what, if any, action is to be based on the assessment and the outcome of the discussions with the IME about the assessors report. The Board’s actions are not intended to be punitive, but aimed to enable the IME to practice safely” (my emphasis, note that the IME here had been notified on 14 January 2013, 17 March 2014 and 6 October 2014 that the replication lacked in substance, no further action was to be taken and “this matter has now been closed”. The last letter noted that the complaint it alleged “that your manner and communication with X during an IME was unprofessional in that you were angry, board and abrupt.”)

APHRA has to recognise it must not be seen as the enemy if it has to have more than grudging co-operation from us.

New research from ISCRR (how’s that again?)

February 4, 2015

I have written about the ISCRR before. I think it is a stupid name as it is almost impossible to remember, it stands for the Institute for Safety, Compensation and Recovery Research. Why, oh why, did they not twist this into RRISC or something similar?

Anyway it produces a monthly newsletter which has some interesting research finding. In the latest newsletter there are two items of research that I thought were interesting.

WorkSafe Victoria (Australia) workers’ compensation data (254,704 claims with affliction onset 2004–2011) were analysed. Claim rates were calculated by combining compensation data with state-wide employment data.

Mental disorder claim rates were 1.9 times higher among women; physical injury claim rates were 1.4 times higher among men. Adjusting for occupational group reversed the gender difference in musculoskeletal and tendon injury claim rates, i.e., these were more common in women than men after adjusting for occupational exposure.

Men had higher rates of physical injury claims than women, but this was mostly attributable to occupational factors. Women had higher rates of mental disorder claims than men; this was not fully explained by industry or occupation. Am. J. Ind. Med. © 2015 Wiley Periodicals, Inc.

The second article was one of those articles that seem to be a total waste of time and provided a blinding glimpse of the obvious. I have summarised it for you.

Journal of Occupational Rehabilitation December 2014, Volume 24, Issue 4, pp 766-776

Mental Health Claims Management and Return to Work: Qualitative Insights from Melbourne, Australia

Mental health conditions (MHC) are an increasing reason for claiming injury compensation in Australia; however little is known about how these claims are managed by different gatekeepers to injury entitlements. This study, drawing on the views of four stakeholders—general practitioners (GPs), injured persons, employers and compensation agents, aims to describe current management of MHC claims and to identify the current barriers to return to work (RTW) for injured persons with a MHC claim and/or mental illness.

Methods Ninety-three in-depth interviews were undertaken with GPs, compensation agents, employers and injured persons. Data were collected in Melbourne, Australia.

Results MHC claims were complex to manage because of initial assessment and diagnostic difficulties related to the invisibility of the injury, conflicting medical opinions and the stigma associated with making a MHC claim. Mental illness also developed as a secondary issue in the recovery process. These factors made MHC difficult to manage and impeded timely RTW.

Conclusions It is necessary to undertake further research (e.g. guideline development) to improve current practice in order to enable those with MHC claims to make a timely RTW. Further education and training interventions (e.g. on diagnosis and management of MHC) are also needed to enable GPs, employers and compensation agents to better assess and manage MHC claims.

Don’t you hate it when researchers’ conclusion is that more research is needed!

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.

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—

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

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

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!

(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.

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

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.

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.

(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.

(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.

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.

Classes	1	2	3	4	5
Low	0-1%	10-12%	25-30%	55-60%	75-80%
Medium	2-3%	14-16%	35-40%	65-70%	85-90%
High	4-5%	18-20%	45-50%	70-75%	95-100%

July 11, 2015