I found an Ontario Law Report clarifying use of AMA 5 Chapter 14 there. As you know I disparage the AMA Guides from the 3rd to the 6th edition. In this case, the plaintiff claimed ‘Catastrophic Injury’ on the basis that she had an Adjustment Disorder with Depressed Mood, Specific Phobia, and Pain Disorder with both Psychological Factors and a General Medical Condition. The health practitioners who assessed Ms. Pastore concluded that she had a class 4 (marked) impairment in the activities of daily living category- Marked impairment ‘significantly impeding useful functioning’. Leaving aside that this is a measure of disability, nevertheless one score of 4 or above is sufficient to reach this threshold. Maybe the AMA Guides are not useless after all.
I have previously posted about bullying in March 2015. Since then the impression I have gained is that claims of bullying are on the rise. Bullying seems as prevalent now as RSI was in the 1990s. My concern is that many claims of bullying are completely overstated, here are some recent examples:
My boss yelled at me when I accidentally closed the door on his hand.
I told my manager that my seat was uncomfortable and she did nothing about it.
A male co-worker put up a calendar on the noticeboard. It had pictures of girls in swimsuits. I felt angry and humiliated and tore it down. He swore at me. I left work. Management had not been supportive.
My boss made critical remarks about my work performance in my work appraisal. I felt angry and humiliated.
I told my boss that I had to leave early for a hairdressing appointment because it was my sister’s wedding on Saturday but she wouldn’t let me go early. I was really upset!
In each of these situations the person had ceased work and had made a WorkCover claim. One wonders what planet they came from.
On the other hand all of us have heard stories of what appears to be very clear verbal and sometimes physical abuse, discrimination, phone calls at night, trashing a person’s locker and so forth. These are genuine instances of terrible behaviour that all of us could identify with. The shame about the trivial complaints is that they diminish the impact of the serious complaints.
I have provided a link to an article quoting an anti-bullying website and to a recent decision at Fair Work in which a claim of bullying was rejected..
The Fair Work Commission has found an anti-bullying applicant couldn’t be at risk of future bullying because she had elected to be “treated as being dismissed” in 2012, and even launched an unfair dismissal claim.
Commissioner Peter Hampton found that despite confusion around the worker’s employment status, it was apparent that both her and her employer had “treated the employment contract as being at an end for some years and the litigation between them has been conducted in that light”.
The Commissioner also rejected the worker’s request to refer the matter to SafeWork NSW.
The worker was employed by a NSW online healthcare business as a marketing director in early 2012. In July that year, she was denied access to work emails while on extended sick leave, which led her to believe she had been sacked.
She subsequently launched several legal proceedings including an unfair dismissal claim, a workers’ comp claim, and complaints to the Australian Human Rights Commission.
The worker also sought anti-bullying orders against the healthcare business’s managing director, telling Commissioner Hampton that she hadn’t been dismissed from the business and was at risk of being bullied in future because she was seeking to return to work there.
She argued she was still an employee of the company because, among other things, she wasn’t paid out any termination entitlements, and the company CEO sent her an email in late July 2012 stating she hadn’t been dismissed.
The employer argued that in launching an unfair dismissal proceeding, the worker clearly believed she had been dismissed, and had abandoned her employment in electing to be treated as being dismissed for the purposes of her unfair dismissal claim.
Commissioner Hampton rejected the worker’s application, finding she was no longer an employee of the company, there were no prospects of her returning, and there was no “foreseeable future risk” of her being bullied by the managing director.
“The employment contract concluded in consequence of the election by the [worker] to be treated as being dismissed and the subsequent events and conduct by the parties,” he said.
“I am also not satisfied that any potential return-to-work arrangements, or other circumstances, exist in this matter where there is a foreseeable future risk of the [worker] being subject to bullying conduct as a worker whilst at work by the managing director of the employer.”
Commissioner Hampton noted that the worker had also sought for the FWC to refer the alleged ongoing risk of bullying faced by other workers at the business to SafeWork for investigation.
“[There] is no basis to deal with this under this application,” he said.
In June last year, Commissioner Hampton found the FWC only had jurisdiction to formally refer bullying incidents to the relevant work health and safety regulator if the applicant was at risk of future bullying (see related article).
KM [2016] FWC 2088 (18 April 2016)
This is a brief overview of this interesting paper. You can find the full document here.
Work-related mental disorders, each year on average:
I have written about problems with impairment guides several times 1,2.3. Recently I have compiled data on the answers to 5 case studies by 114 psychiatrists who have completed the GEPIC training program. Although we assert face validity in other words we think it measures psychiatric impairment, the critical issue is reliability, do different psychiatrist come up with the same numbers with the same claimant. We have a statistician looking at this. I will be presenting a paper on the findings of the study at the Congress in Hong Kong.
It has focused my thinking on the problems caused by repetitive failures by the authors of the AMA guides to give us a reliable method of determining psychiatric impairment. Although I am one of the co-authors of the GEPIC I have some concerns particularly with regard to measuring low levels of impairment with any precision and especially with regard to class III that ranges from 25 to 50%. On reviewing the PIRS and cannot even be said to have face validity.
For this end for other reasons I have written an impairment guide called the RAPID MSE (The Rating of Psychiatric Impairment Determined by the Mental State Examination). I wrote a paper in 2014 about the various methods used in Australia. On rereading this paper I was struck by the idiocy of the methods described in chapter 14 AMA 6 and the metastatic spread of the PIRS.
I think there are fundamental requirements for any method of psychiatric impairment assessment.
I have written about this before but it has been highlighted by the program for the faculty conference in Perth in Perth in September 2016. The theme is
Goals, purposes and strategies for prisoner and staff mental wellbeing in custody.
In October 2015 I wrote to the head of the faculty:
More and more me and my colleagues are feeling marginalised by the juggernaut of criminal psychiatry. There is only one paper in Canberra at the November 2015 meeting of the Foprensic Faculty relevant to the work I and others do in the civil field “Expert evidence in mental harm claims’ ( I am aware of the plenary session on family law but few of us do that work now). I know you require people to offer papers but you need to be more pro-active. The same goes for the vexed question of suitable training for psychiatrists doing civil work but the views we have seem to be swamped.
The response I received was:
There are two issues, one regarding civil forensic content at the annual conference, and the second on training.
I had intended to table the email for discussion at the committee meeting.
I have forwarded it to Sophie Davison, convenor of the 2016 FFP conference for consideration. From the conference perspective, it would be best if a suitable keynote could be suggested. I suspect this may be too late for 2016 though nothing formal planned for 2017 yet.
It appears that the 2016 conference was set in stone some 11 months before it is to take place. There is nothing in the program about civil forensic matters!
The head of the faculty wrote further about the issue of training:
The training is a more delicate issue which I did raise at the recent college MAC meeting. While I think a formal training program in civil could lead to accredited faculty membership status, this does not fit with current college processes and may take a lot of work from a dedicated faculty committee to implement.
The Victorian Branch of the Faculty had a one-day conference two or three years ago. The conference was deliberately designed to cater for civil forensic psychiatry, criminal forensic psychiatry and those dealing with Family Court matters. We invited speakers and suggested topics. The conference was very successful, it can be done.
If this Faculty is to succeed there has to be an awareness of the legitimacy of the work done by civil forensic psychiatrists. this is not reflected in either the theme or the program for the conference in Perth where civil forensic psychiatry does not feature.
Today I received an email informing Faculty members of sessions in our area of interest at the College Congress in May 2016.
Several sessions may be of interest to members of the Faculty of Forensic Psychiatry, with highlights including:
Sunday 8 May Pre- Congress Workshop
· Civil Forensic Psychiatry Workshop
· Medico Legal Opinion Construction
Monday 9 May
· The Symphonie Fantastique: 3 Victims stories in respect to a person affected by Pseudological Fantastica
· Using Online Data in the Assessment of Psychiatric Disability
Tuesday 10 May
· Invited speaker Dr Scott Harden: Homicidal threats, ideation and behaviour in Adolescents – A clinicians view
· The injured motorist and the Psychiatrist
· A Survey of Mental Health Exclusion Clauses in Life Insurance Policies
· An assessment of the Reliability and Validity of the Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC)
The last session will be presented by myself! This is a step in the right direction but I believe we have a long way to go. For years we have been battling to be seen as a legitimate subspecialty. It has been very disappointing that the juggernaut of criminal forensic psychiatry appears to have ignored that.
I have had similar concerns recently about the Victorian Medical Panels where there has been an active program of recruitment of new young psychiatrists although, paradoxically, the work has been drying up. What has also been drying up is training for these new members. The high reputation of the Medical Panel in Victoria has come from outsiders recognition of the expertise of members of the Medical Panel. This is no longer the case, recently I did a training session for those people experienced in the use of the GEPIC, one young psychiatrist admitted that he had never used it. I asked him why he was there. He said he was a member of the Medical Panel and had been instructed to attend! I wrote to the convenor expressing concerns about his lack of expertise.
The response from the convenor was:
I can assure you that all of the psychiatrists added to the list ( which was only a small number to fulfil certain requirements ) are appropriately experienced and qualified. There is a wide range of issues that we need expertise in and impairment assessment is only one component
The view continues to permeate that the work we do requires no extra expertise and can be done by any experienced psychiatrist. Periodically various schemes bring an influx of psychiatrists to do this work but most psychiatrist find, to their dismay, that the work is difficult, often emotionally taxing, time-consuming and sometimes requires court appearances. There is a high dropout rate. The various schemes then revert to using the familiar faces, the problem is that there are not enough familiar faces, we need more of them.
I have argued and will continue to argue that there needs to be some system of training. The argument from faculty members has sometimes been that training in criminal forensic psychiatry has a component to deal with civil assessment and that that should be enough. This is nonsense.
So it goes
Today I received by email the AMA Psychiatrist Newsletter, 15th Edition. I must say that i was not aware of the other 14. Nevertheless I thought it might be useful and I might learn something. Such was not the case. The topics covered included the following:
Mental Health Reform
Medicare Benefits Schedule Review
Activity Based Funding on Mental Health
Private Mental Health Alliance
Operation Life Mobile Application
RANZCP-Message from the President
AMA branch roundup (with no content but with a sidebar referring to interviews with Dr Kerryn Phelps from 2003 when she was then president of the AMA!)
I am sure this is a worthy endeavour but I found it almost incomprehensible. For example the section on Activity Based Funding on Mental Health included the following acronyms:IHPA, AMHCC, ABF MHC DSS, MHCS, MHWG and MNCERG.
This gives you of flavour of this article here are the 1st two paragraphs:
The Independent Hospitals Pricing Authority (IHPA) is developing the Australian Mental Health Care Classification (AMHCC) including a supporting Activity Based Funding Mental Health Care Data Set Specification (ABF MHC DSS). The development of the AMHCC is intended to significantly improve the clinical meaningfulness of mental health classification, leading to an improvement in the cost predictiveness and will support the new models of care being implemented in all states and territories.
To date, the classification development work has been informed by the findings of the University of Queensland Definition and Cost Drivers for Mental Health Services project, qualitative feedback from participants of the Mental Health Costing Study (MHCS) and analysis of the MHCS dataset.
Since our last edition, IHPA has been working through its MHWG and its Mental Health Classification Expert Reference Group (MHCERG) to develop and refine the AMHCC. MHCERG comprises mental health subject matter experts, classification system development experts and data analysis expert.
And on it remorselessly goes for another 8 paragraphs with equal incomprehensibility. Can you read it?
The NSW workers compensation guidelines for the evaluation of permanent impairment (4th edition) 1 April 2016 has just been released. It has been re-written to conform with the Safe Work Australia template. However there is no agreement by states using the GEPIC to use the PIRS and considering the disdain with which the PIRS and AMA6 are held together with the cost of training any such change is unlikely. The changes to the PIRS are as follows:
Psychiatric and Psychological disorders
Paragraph 11.4 from the 3rd edition, on the development of the PIRS has been removed to align to the Safe Work Australia national template guideline. The numbering therefore changes from 11.4 onwards (in comparison to the 3rd edition).
Clause Change
Introduction
Removed 3rd and 4th sentences that referenced s67 pain and suffering.
Removing the reference to s67 in this clause does not affect an exempt worker’s entitlement to claim for pain and suffering compensation. The reference to s67 in this clause was a case management tool which is now considered inappropriate in a medical guideline.
Co-morbidity
Removed the Alzheimer’s disease example. Replaced with a bi-polar disorder example.
11.10
Pre-existing impairment Minor change to second half of the paragraph for improved clarity, and to align with the wording in 1.28 in the Guidelines: Rephrased to:
The injured worker’s current level of WPI% is then assessed, and the pre-existing WPI% is subtracted from their current level, to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.
The Faculty of Forensic Psychiatry on the face of it, formally acknowledges that the work done by psychiatrists treating mentally ill offenders and those doing civil assessments constitutes a subspecialty. It is an odd subspecialty because court appearances are the only thing these two groups have in common. Furthermore there are state funded training programs in criminal forensic psychiatry with due recognition but there are no formalised training programs for psychiatrist doing civil assessments. We now have the odd situation where all those who are members of the former section have been grandfathered in as Fellows of the Faculty of Forensic Psychiatry but the only pathway to Fellowship now is through a training program and hence any newcomers involved in civil assessment can no longer become full members of the Faculty.
This was highlighted for me by the recent joint meeting with ANZAPPL that I did not attend because there were no sessions of any relevance to the work that I do. I wrote a letter of complaint to Ness McVie, the chair of the Faculty who provided a belated response, amongst other things she wrote “I have forwarded it to Sophie Davison, convenor of the 2016 FFP conference for consideration. From the conference perspective, it would be best if a suitable keynote could be suggested. I suspect this may be too late for 2016 though nothing formal planned for 2017 yet”.
I found this astonishing, an annual meeting of my faculty does not include any sessions relevant to the work that I do and will not have one in 2016 but may have one for 2017.
I was beginning to get heated about it until I began ruminating about whether or not it actually mattered. In one sense it is useful to have an opportunity to discuss the issues we face in common, to share ideas and to look at interaction with the court system and the legal profession. On the other hand, on a day-to-day basis it doesn’t matter a scrap. I have never been asked in court as to whether or not I am a Fellow of the Faculty of Forensic Psychiatry and I doubt whether anybody in the court room would know that it exists.
Increasingly I feel that the Faculty of Forensic Psychiatry has been hijacked to the exclusion of those of us who do civil assessments and I see no change occurring in the foreseeable future. Maybe it is time we start looking at setting up a Section of Civil Forensic Psychiatry and go our own way?
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
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.
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:
What do you think of my claim Doctor?
So do you think I’m mad or not?
Do you believe me?
Do you think I should go ahead with my claim?
So, do I reach the threshold?
Ever been asked these questions or similar. I know I have.
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.
She asked me ‘ What do you think of my claim Doctor?
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.
That was the last time I have ever given an opinion.
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.
I think that you say as little as possible but in a pleasant way
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.
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.
In Victoria we have adopted the HEALTH PRACTITIONER REGULATION NATIONAL LAW
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
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.
(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.
Whatever you may think of DSM 5 the question remains when and if should we use it. DSM 5, in particular, disparages the axial diagnosis scheme used in DSM IV and the GAF. The DSM 5 is poor with regard to persistent pain. However, de facto it clearly replaces DSM IV. I work in the medico-legal area where such a change has significant implications. The new South Australia impairment guidelines will specify use of DSM 5. There appears to be no direction from the College and, one may ask, is that the role of the College? So I have been using both in my reports, eg when dealing with claimants with persistent pain, but I prefer persistent depressive disorder DSM 5) to dysthymia (DSM IV). I believe that shortly I will have to make the transition complete. but it does seem a messy process. What are your thoughts.
The VWA have produced a new fee shedule backdated to 1 July 2014 “due to an administrative oversight”. When in doubt between conspiracy and stuffup, stuffup generally wins. I became confused about the fee schedule as there appeared to be items missing. I sought clarification that arrived promptly. In fact there are two fee schedules. There is a fee schedule for IMEs and a fee schedule for IIA, that is independent impairment assessments. I have been dealing with the system for a long time and it just goes to show how confusing all this is when I was unaware of these two different schedules.
Independent Medical Examinations 1 July 2014
| Psychiatrist | |||
| PCT100 First Examination and Report– Inclusive of conducting the examination, report writing, reading lime and any incidentals (such as postage, photography and faxing services)
– Diagnostic tests (such as x-rays) carried out as a necessary part of the examination are not included in the first examination and report item code and will be reimbursed in accordance with WorkSafe policies, the relevant Medicare Benefit Schedule item code and the WorkSafe’s Reimbursement Rates for Medical Practitioners. |
$833.77 | $83.38 | $917.15 |
| PCT150 Subsequent Examination and Report– Applies where a WorkSafe Agent requests a report within 12 months of the first examination and report for the same claim | $500.26 | $50.03 | $550.29 |
| Loadings additional to examination and report fee are subject to Work Safe Agent prior written approval only | |||
| PCT200 Report reading | $45.88 | $4.59 | $50.47 |
| – Flat rate for reading of all reports that accumulatively are greater than 20 pages | |||
| – This fee is payable once only per claim per WorkSafe Agent report request | |||
| PCT250 Urgent Examination and Report– Urgent request by a WorkSafe Agent to complete initial or subsequent exam and provide the report to the Agent within two business days | $94.33 | $9.44 | $103.77 |
| PCT300 Worksite visit | $817.55 | $81.76 | $899.31 |
| – Request by a WorkSafe Agent to complete a worksite visit and provide a report to the Agent | |||
| – Inclusive of worksite visit, report writing, reading time and any incidentals | |||
| PCT350 Travel to and from assessment (at Agent’s request) per hour | $423.98 | $42.40 | $466.38 |
| – Calculated in 15 minutes blocks | |||
| – Travel only paid when travelling to a location other than IMEs nominated practice location/s | |||
| – Travel for multiple assessments in the one location should be charged on a pro-rata basis for each claim | |||
| PCT400 Audiovisual Viewing | $212.01 | $21.20 | $233.21 |
| – Flat rate for the viewing of all audiovisual material | |||
| – This fee is payable once only per claim per WorkSafe Agent report request | |||
| PCT450 Supplementary report– Applies where a WorkSafe Agent provides information additional to that initially provided or to answer additional questions not initially asked and the IME has previously examined an injured worker in the past 12 months
– An IME is not required to conduct a re-examination (or re-contact) the injured worker in order to provide the additional information. |
$271.42 | $27.14 | $298.56 |
| PCT500 Interim report | $56.64 | $5.67 | $62.31 |
| – Request by a WorkSafe Agent to provide information prior to receiving the IME final written report | |||
| – The advice from the IME may be provided verbally (i.e. by telephone) or in writing (i.e. fax). | |||
| PCT550 Non–attendance on day of appointment– Non–attendance fee is applicable where an IME appointment is cancelled by the WorkSafe Agent on the day of the appointment or where the injured worker does not attend | $282.74 | $28.27 | $311.01 |
| IEO400 Assessment of Impairment as requested by Agent using AMA2Guide** | $155.21 | $15.52 | $170.73 |
Fee Schedule 1 July 2014 regarding Independent Impairment Assessments
Note 1 A Dual Purpose Referral refers to those requests for an assessor’s opinion regarding BOTH liability AND impairment within the one referral, examination, assessment and report request. Dual Purpose Referrals will only be requested of those assessors who are both an Independent Impairment Assessor and WorkSafe approved Independent Medical Examiner. This loading only applies subject to Agent request at referral. |
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I have always had some concerns about the concept of the Faculty of Forensic Psychiatry as it brings together two fundamentally different groups, those who do civil forensic psychiatry and those who work in the criminal field. We have virtually nothing to say to each other and apart from our involvement with courts we have fundamentally different tasks. Even with court appearances we attend different courts. Nevertheless the move to a Faculty seemed to serve a useful function as it gave us a greater voice within the College and I was prepared to paper over the obvious fissures between as long as we acknowledged each other and gave the other group some respect.
The Victorian Branch committee has representatives from both the civil and criminal area and we have run a state seminar and a national conference and have made sure that both sides had fairly equal representation. At the Darwin meeting in July 2013 I was surprised to hear that the only training contemplated with regard to civil forensic psychiatry is that given to trainees in the criminal area and there was no thought given to training those who do or planning to do civil forensic psychiatry. I wrote about this previously, see my post dated 3 May 2013.
Apart from training provided by Nigel Strauss on myself (a reminder that the next training weekend is on 31 May and 1 June 2014) there are no other options for training in civil forensic psychiatry that I am aware of.
I was aware that the next binational conference was to be in Hong Kong in August 2014 (incidentally a terrible time to be in Hong Kong from the point of view of climate) and was planning to go. The theme “Is There Anything Forensic Psychiatrists Don’t Know about Sex?” lead me to to assuming that there would be some sessions with regard to assessing victims of sexual abuse especially in light of the Royal commission and issues with regard to allegations of sexual abuse in the Family Court area. I have just seen the program however. I invite you to look at the program yourself. I was annoyed to see that there is no part of the program involved with civil forensic psychiatry. We have been shut out, I don’t think this has been malicious I think they just forgot that we exist.
It is clear that the term Forensic Psychiatrist in the theme refers to psychiatrists working in the criminal area.
Since psychiatrist working in the civil forensic area constitute a significant number of members of the faculty I’m astonished by this slap in the face. I feel this has been a complete takeover and that we have been treated with contempt.
Maybe we need to stop messing around with the notion of united Faculty and make a clear distinction between civil forensic psychiatry and criminal forensic psychiatry in the Faculty and go our separate ways.
I would be interested in your thoughts, possibly I am overreacting.
I know that a number of psychiatrists were concerned that there was no taining in use of the GEPIC in 2013. You will be pleased that impairment assessment training in use of the GEPIC will resume this year. See website for details.
You will need to do core training, this takes place on 30 April 2014 or 21 July 2014. The initial training in use of the GEPIC is on 18 June 2014 and training for those who have had experience in use of the GEPIC and have done stream one is on 2 September 2014.
You will have noticed that bullying claims are becoming increasingly frequent. There are some bullying claims that seem very clear-cut, for example kids being bullied at school; but others are sometimes very challenging. I have noted three particular groups who seem predominant. The first group are those who have had a WorkCover claim for a physical injury and had come back to work and it is clear they are not wanted, for a variety of reasons, usually because it is a small workplace and as far as the owner is concerned, either the worker does the usual work or there is no place for them and the owner tries to hound the person out of the workplace. The second group are those claimants whose performance has been problematic and who claim bullying after a performance review. The third group are those claimants who have had issues with work colleagues sometimes because others resented the claimant being promoted or being given special treatment and sometimes because the claimant had had a social relationship with the alleged bully and problems arose in their social relationship that spilled over into the workplace. My experience is that victims of bullying or alleged bullying arising in the workplace are difficult to interview and want to recount every instance of injustice.
I have been trying to sort out some sort of taxonomy of bullying as there are a number of other categories that I think should be included.
I would be interested to hear of your own experiences as I am writing a paper for conference later this year.
New privacy laws: Is your practice ready and compliant?
This article was published in the March 2014 edition of vicdoc
AMA Victoria Solicitor, Melanie Earles
On 12 March 2014 the new privacy law regime brought in under the Privacy Amendment (Enhancing Privacy Protection) Act 2012 will commence. The reforms are the most significant changes to Australia’s privacy laws since the implementation of the Privacy Act 1980 (Cth) (Privacy Act).
Some of the key points health professionals must keep in mind to ensure their practice complies with the new laws are set out below.
What are the changes?
The Act will replace the existing nine Information Privacy Principles (IPPs) that apply to the public sector; the nine National Privacy Principles (NPPs) that apply to the private sector; along with 13 Australian Privacy Principles (APPs) that will apply to the public and private sector alike.
Health practitioners fall within the definition of an ‘organisation’ that handles ‘personal information’ so the APPs apply to them.
Personal information means information or an opinion – whether true or not – about an individual whose identity is apparent or can be reasonably ascertained.
In Victoria, health practitioners are also subject to the Health Records Act 2001 (Vic), which requires organisations dealing with health information to comply with the 11 Health Privacy Principles (HPPs).
The new APPs will apply in addition to the Victorian HPPs. The APPs are more similar to the existing HPPs than the federal principles they are replacing. This is good news for Victorian doctors because it means minimal changes will be required regarding the way health practitioners handle their patients’ personal information.
The most relevant (but not all) of the 13 APPs have been set out below. Health practitioners should check their current practices meet with the federal APP obligations.
APP 1 – Open and transparent management of personal information
• Organisations must have a clearly expressed and up-to-date privacy policy, and take reasonable steps to ensure it is complied with.
The privacy policy must specify what type of information is collected, how an individual may complain about a breach of the APPs, and whether the organisation is likely to disclose information to third parties. The privacy policy must be available to patients on the practice website or in hard copy at the practitioner’s consulting rooms.
AMA members may obtain an AMA-approved standard form privacy policy free of charge. Members can also contact the legal advisor directly with any questions relating to privacy law compliance.
Reasonable steps to ensure compliance includes:
• training staff about the organisation’s policies and practices
• establishing procedures to receive and respond to complaints and enquiries
• establishing procedures to identify and manage privacy risks.
APP 3 – Collection of personal and sensitive information
• Organisations must only collect sensitive information (a subset of personal information, which includes health information) with an individual’s consent, and where the collection is also reasonably necessary for one or more of the organisations’ functions or activities. There are some exceptions that apply in certain circumstances (for example, where a patient is unable to consent due to a medical emergency, or permitting the collection of family, social and medical histories).
APP 3 is much the same as existing HPP requirements. Ensuring patients sign an appropriately drafted consent form prior to collection of sensitive information sufficient to discharge this obligation.
APP 4 – Dealing with unsolicited personal information
This is a new requirement that applies to situations where organisations receive personal information they haven’t asked for. If this occurs – first, the organisation must determine whether the information could have been collected under APP 3 (for example, if they have a signed consent from the individual). If so, they must deal with the information as they would other personal information – that is, in accordance with privacy law. If not, the organisation must either destroy or de-identify the information as soon as possible, assuming it is legal and practical to do so.
APP 5 – Notification of collection
Individuals must be made aware of the nature of the personal information an organisation collects. In a health setting, this should be covered in the patient consent. Additionally, the individual must be told where their information may go, for example – whether it will be disclosed to third parties or overseas recipients. There is an obligation under APP 5 to inform patients how they can access the organisation’s privacy policy and how they may make a complaint.
APP 6 – use and disclosure
This is much the same as the existing HPP obligation, and requires that personal information may only be used or disclosed for the primary purpose for which is was collected, or a secondary purpose directly related to the primary purpose.
Certain exceptions that apply to health information, permitting use and disclosure are:
• where there is a serious and imminent threat to the health and safety of an individual or the public
• for health and medical research if certain conditions are met
• of genetic information to lessen or prevent a serious threat to a genetic relative
• to carers for compassionate reasons.
APP 7 – Direct Marketing
Organisations must not use personal information for direct marketing unless the individual has given specific consent for this. Alternatively, direct marketing is permitted if the individual has a reasonable expectation this would occur and they can easily opt out.
APP 10 – Quality
Organisations must take reasonable steps to ensure the personal information it collects, uses or discloses is accurate, up to date, complete and relevant.
APP 11 – Security
Organisations must take reasonable steps to protect the personal information it hold from misuse, interference and loss and from unauthorised access, modification or disclosure. In a health setting, this means having computer databases password protected, storing patient files in a lockable area, and training staff about the appropriate handling of personal information.
APP 12 – Access
Organisations are required to respond to requests for access of personal information from individuals within a reasonable time. If an organisation decides not to give access, written reasons must be provided. There are certain exceptions where access is not required; for example, where it may cause harm to the individual.
APP 13 – Corrections
An organisation must take reasonable steps to ensure the personal information it holds is up to date, accurate, complete, relevant and not misleading. There is a positive obligation to correct information where it is wrong. This differs from the old requirement that necessitated an individual to establish an error before any obligation to correct arose.
What happens in the event of a breach of an APP?
Where a breach of an APP occurs, the individual concerned may lodge a complaint with the Federal Privacy Commissioner (free of charge) and the Commissioner may apply to the Federal Court or the Federal Magistrates Court for an order that the entity pay a penalty of up to $1.1 million for corporations (and up to $220, 000 for individuals).
It is not necessary for the individual to prove loss or damage as a result of the breach of confidentiality – they may obtain compensation even if they have suffered no injury or loss.
AMA members are welcome to contact the legal advisor for further and specific information on issues related to privacy, including a standard form privacy policy and patient consent document.
Key points to remember