There have been significant changes or potential changes in workers compensation in 5 states, I have summarised the changes here.
Queensland: Injury threshold introduced and other changes. The Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013 (Qld) has been discussed in a previous blog.
Victoria’s new Act consolidates previous workers compensation Acts, as from 1 July 2014 WorkSafe goes, the new entity is , surprise, the Victorian WorkCover Authority!
In Western Australia feedback is being sought on a proposal to repeal Western Australia’s workers compensation laws and replace them with a more ‘user-friendly’ Act that includes a new ‘worker’ definition to help employers determine with greater ease whether a worker is covered by the scheme. According to WorkCover WA, a significant number of amendments to the Workers Compensation and Injury Management Act 1981 over the last three decades have resulted in a ‘complex and highly prescriptive statute which is difficult to understand and apply’.
A discussion paper has been released, based on an internal review of the Act and includes proposal to enhance readability and consistency in the legislation.
South Australia WorkCover has been decommissioned. The State Attorney-General and Industrial Relations Minister said, in relation to SA Workcover: ‘It’s been amended, patched over and fiddled with for years and in the process has become so disliked, the only thing to do is to rub it out and start again.’ Workcover SA has an unfunded liability of well over $1b.
New South Wales Lump sum law changes. NSW legislation has attempted to restrict lump sums, by imposing a 10 per cent whole-person-impairment threshold on claims, this will be decided by the High Court.
Canberra’s Tax Office letter bomber has won a battle against the government over his right to continue receiving worker’s compensation for its mishandling of a workplace love affair.
Former public servant Colin George Dunstan sent 28 bombs in the post to colleagues and high-profile figures in 1998. One of Mr Dunstan’s bombs exploded in a mail centre and injured a postal worker. The rest were intercepted by police, but the letters had already caused mass evacuations and fear just before Christmas.
Mr Dunstan, now in his late 50s, spent nine years in prison over the notorious letter-bombing campaign, and was formally sacked from the public service in 2001. The crimes came after a turbulent romantic affair with a colleague, known as ”Ms X”, that took place over a number of years.
The former Australian Tax Office employee claimed he was left feeling suicidal and depressed after the woman sexually harassed and stalked him. He won a long-running compensation battle in 2012 when the Administrative Appeals Tribunal ruled the ATO had compounded his depression through its handling of the matter.
But, the year after Mr Dunstan’s win, federal government workplace insurer Comcare decided he should stop receiving compensation because he had become eligible for the superannuation pension at the age of 55. That pension, part of the generous Commonwealth Superannuation Scheme, was valued at about $1066 a week, or a $40,000, lump sum.
But Dunstan never formally elected to take the superannuation out, either as a lump sum or a weekly payment. The government insurer argued that Mr Dunstan, and others in his position, were ”double-dipping”, forcing the government to contribute to their super benefits while also paying them workers’ compensation.
But Comcare lost its fight in the tribunal last year, and was ordered to keep paying the former public servant compensation until he turned 65, died, or became permanently disabled. Comcare appealed in the Federal Court on Friday, arguing before the full bench that the tribunal’s decision was flawed.
It based the appeal on two grounds, alleging the tribunal had misdirected itself in interpreting the meanings of terms in relevant legislation. It argued that Mr Dunstan had the ability or right to take the superannuation pension at the age of 55, which could have meant he was taken to have received it. That could then have disqualified him from the compensation payments.
But the Federal Court ruled against Comcare without hearing submissions from Mr Dunstan’s barrister. It said no error had been made by the tribunal and dismissed the appeal.
Comcare was ordered to pay Mr Dunstan’s costs. Mr Dunstan still has two ongoing legal battles with authorities, in the ACT Supreme Court and at the Administrative Appeals Tribunal. He is arguing against his original suspension from the ATO in the Supreme Court.
There is no more to be said, I wonder how this claim can be accepted when so many others, with arguably more merit, are rejected.
Recently I was asked to review an asylum seeker who I had seen 12 months previously for his personal injury claim arising out of injuries he said he received when he was in detention. He was referred by a legal aid service and I was paid accordingly.
Recently the legal aid service contacted me and asked me to see him for a review but explained that they had lost their funding and could not afford to pay me. They promised that if the case was successful my fee would then be paid.
It seemed to me that this was an interesting ethical dilemma. The central issue was that I could be seen to be writing an opinion that was favourable to the claimant because otherwise I would not be paid.
The alternative of not seeing him seemed unfair as he required a review examination opinion because of his impending court case and since I was the only person who had seen him with regard to his claim the refusal to do this review could well prejudice his case.
What would you do?
I gave it some thought and eventually came to a clear decision about how to proceed.
I saw him and prepared a further report and opinion.
How did I overcome my ethical dilemma?
It was quite simple. I told the legal aid service that I would not accept any payment from them in any circumstances and that this was to be pro bono.
I would be interested in your opinion. Have you also been in a situation where solicitors who operate on a no win no fee basis have asked you to prepare reports on the same basis?
Discrimination against people with psychiatric injuries in various schemes used in Australia and New Zealand.
This is going to be in the nature of a running blog as there are frequent changes leading to further discrimination.
In South Australia there is no lump sum payment for any permanent psychiatric injury in their WorkCover scheme.
In Queensland following a review significant changes were made effective from 29 October 2013.
Employment is to be ‘the major significant contributing factor’ for psychological or psychiatric claims. For physical injuries the definition remains unchanged stating ‘Employment to be ‘a major significant contributing factor’ for psychological or psychiatric claims’. Note the term ‘ the major significant contributing factor’, this is a much more stringemt test than a major significant contributing factor.
In Victoria in the WorkCover system the threshold for a permanent injury is 10% but 30% for any psychiatric injury. Similarly for a civil injury claim (Wrongs Act) claim to proceed it must exceed the threshold of 5% for a physical injury but more than 10% for a psychiatric injury and the psychiatric injury cannot be secondary to a physical injury.
In New Zealand by contrast with the system in all the Australian states a person only has cover for a mental injury (defined as a clinically significant behavioural, cognitive, or psychological dysfunction):
because of physical injuries such as death of a person, physical injuries suffered by a person including those arising from an accident, treatment, treatment for another physical injury and under certain circumstances gradual process, disease or infection or from cardiovascular or cerebral vascular event.
Crimes involving sexual assault that lead to a mental injury are compensable. Suicide is excluded suicide unless the suicide was the result of a mental injury arising from a physical injury.
I will keep adding to this as I further examples of discrimination
As you may remember I have already written about this Act. Despite numerous discussions, pressure from various groups and meetings with representatives of the Transport Accident Commission there were no changes to the bill.
On November 14 2013 the Victorian Government passed the Transport Accident Amendment Bill 2013. The relevant sections for psychiatrists are the following;
TRANSPORT ACCIDENT AMENDMENT ACT 2013
SECT 21
Amendments relating to reimbursement of medical reports
(1) After section 60(2E) of the Principal Act insert —
“(2F) For the purposes of subsection (2)(a), the Commission is not liable to pay as compensation the reasonable costs of medical services that are the provision of a document obtained for medico-legal purposes, or related to medico-legal purposes unless the document—
(a) is requested jointly by the Commission and the person who is injured; and
(b) is provided jointly to the Commission and the person who is injured; and
(c) is provided by a registered health practitioner within the meaning of the Health Practitioner Regulation National Law.
(2G) For the purposes of subsection (2F), a document obtained for medico-legal purposes includes a document obtained for any of the following purposes—
(a) for the purposes of determining the degree of impairment under section 46A, 47(7) or 47(7A);
(b) for the purposes of Part 6 or Division 1 of Part 10;
(c) responding to a decision of the Commission under Parts 3 and 4 or in contemplation of such a decision;
(d) for the purposes of an application under section 77 for a review of a decision, or in contemplation of such an application.
(2H) For the purposes of subsection (2F), a document is not obtained for medico-legal purposes if the document is obtained from a person’s treating medical practitioner.
Amendment of section 93 (common law damages claims for mental injury due to injury or death of tortfeasor)
After section 93(2) of the Principal Act insert —
“(2A) A person who is injured as a result of a transport accident may not recover damages from a person indemnified by the Commission under section 94(1) or from the Commission in respect of a vehicle to which section 96 applies if—
(a) the injury is nervous shock or other mental injury; and
(b) the person was not directly involved in the accident and did not witness the transport accident; and
(c) the mental injury or nervous shock was suffered as a result of the injury or death of another person who was directly involved in the transport accident; and
(d) the transport accident was caused—
(i) in the course of the other person referred to in paragraph (c) committing, or intending to commit suicide; or
(ii) solely or predominantly by the negligence of the other person referred to in paragraph (c).”.
SECT 27
Amendments relating to serious injury applications
After section 93(17) of the Principal Act insert —
“(17A) For the purposes of paragraph (c) of the definition of “serious injury”, a person has a severe long-term mental or severe long-term behavioural disturbance or disorder if that person, for a continuous period of at least 3 years—
(a) has a recognised mental illness or disorder (other than abnormal illness behaviour) as a result of a transport accident; and
(b) displays symptoms and consequent disability that have not responded, or have substantially failed to respond, to known effective clinical treatments provided by a registered mental health professional who is registered under the Health Practitioner Regulation National Law to practice (other than as a student); and
(c) has severely impaired function with symptoms causing clinically significant distress and severe impairment in relationships and social and vocational functioning.”.
Commentary
I have already commented on the concerns myself and others have had about these amendments. I have highlighted the major absurdity
a registered mental health professional who is registered under the Health Practitioner Regulation National Law to practice
There ain’t no such person! There is no category for ‘registered mental health professional’ in the Health Practitioner Regulation National Law and no-one can register in this category with AHPRA. We told them but they did not listen, or care.
The following has been “borrowed” from the Slater and Gordon website.
New Transport Accident Commission laws to restrict common law claims, particularly for severe psychiatric injuries
On November 14 the Victorian Government passed the Transport Accident Amendment Bill 2013. The legislation is the latest in a series of actions taken by the TAC over the last 2 years that make it harder for seriously injured Victorian’s to make a common law claim when they have been seriously injured.
The main changes to TAC compensation laws are as follows;
As soon as this legislation became public, organisations representing social workers, psychiatrists, psychologists, health and other allied health professionals, emergency services workers, community organisations and the Law Institute of Victoria wrote to the Government calling for consultations to address a range of concerns about the proposed changes. The Government decided to proceed with the Bill without addressing these concerns.
The Bill is unlikely to significantly affect you if your common law claim (serious injury application) was commenced before 16 October 2013. If you have any questions about these proposed changes and how it may impact on your case it is best to speak with one of our expert lawyers.
TRANSPORT ACCIDENT FURTHER AMENDMENT BILL 2013
This Bill was introduced into the Victorian Legislative Assembly by the State Treasurer Michael O’Brien. I have edited the second reading speech to include only matters relevant to psychiatrists. The 4 major changes are:
1.Establishing clinical criteria for what constitutes a severe long-term mental or severe long-term behavioural disturbance or disorder for the purposes of serious injury.
2. No claim for damages for a person who did not witness or was directly involved in a transport accident involving injury or death as a result an intent to commit suicide or suicide or through negligence.
3. An increase in family counselling benefits from $5870 per claim to $15 000 per claim.
4. As from 1 July 2014 the TAC will only reimburse medico-legal report expenses if the medico-legal report is requested jointly by the TAC and the person who is injured.
The Second Reading Speech
This bill is the result of the government’s commitment to maintain the integrity and improve the operational efficiency of the Transport Accident Commission scheme to ensure it remains financially viable so that it can support injured Victorians well into the future.
The objectives of the bill are to clarify the Transport Accident Act 1986 (the act), increase some client benefits and address anomalies. Legislative amendments relating to the original intent of the act. As a community we know much more about mental illness than we did when the TAC scheme was established in 1986 . The government understands that recovering from a transport accident can be a very emotional and challenging time.
This bill introduces clauses that, for the first time, set out clinical criteria of what constitutes a severe long-term mental or severe long-term behavioural disturbance or disorder for the purposes of serious injury. This provision has been developed in consultation with the Department of Health, including the chief psychiatrist. The clinical criteria will encourage people who were directly exposed to a transport accident and who have suffered a recognised mental illness or disorder to seek treatment by a registered mental health professional, to improve their chances of getting their life back on track as soon as possible.
The bill will clarify that the injury or death of a person through suicide, an intention to commit suicide or predominately through their own negligence does not give rise to an action by another person for damages in respect of mental injury (including nervous shock) where the other person was not directly involved in or witnessed the transport accident.
Legislative amendments relating to increased client benefits. Currently under the act, family counselling benefits are capped at $5870 per claim. This bill will increases the cap on family counselling benefits to $15 000 per family claim. This will allow an immediate family member of a person who is killed or severely injured in a transport accident significantly improved access to mental health treatment to address their understandable grief. It is intended that this provision will apply to both new and existing claims.
Currently, the TAC funds the reasonable cost of medical reports obtained by or on behalf of a client, in relation to injuries sustained in a transport accident. On average, clients attend eight medical examinations over the course of their claim, of which, only two are commissioned by the TAC. The remaining examinations are commissioned by the client’s legal representative in support of legal claims. To address the need for a client to attend multiple examinations and to minimise the occurrence of a client attending duplicate examinations in relation to the same specialisation, this bill will enable the TAC to reimburse medico-legal report expenses if the medico-legal report is requested jointly by the TAC and the person who is injured. It is intended that this provision come into operation on 1 July 2014 to inform and assist medical practitioners of this new policy change.
An example of professional non-misconduct and vexatious litigation and misplaced indignation.
This is the case of: the Medical Board of Australia and McCarthy [2012] WASAT 210
In this case The Medical Board of Australia alleged that a consultant psychiatrist, Dr McCarthy, was guilty of gross carelessness by making three incorrect statements in a medical report.
The medical report was prepared at the request of the patient’s former employer for use in legal proceedings between it and the patient.
The Tribunal assessed the statements in their context, reviewed the relevant evidence in relation to each statement, and concluded that the Board’s allegations were not established. The application was dismissed.
A footnote stated “Practitioner’s application for costs will be heard in January 2013”. Dr McCarthy was represented by senior counsel. (Note that Dr McCarthy is identified although completely vindicated but the vexatious litigant retains his anonymity.)
The report refers to a Medical Board hearing regarding, what appears to be at face value, a frivolous complaint leading to a total waste of time and money.
Dr McCarthy, a psychiatrist wrote a report about a KR, a workers compensation claimant. The claimant objected to 3 phrases used in the report. The Medical Board then proceeded to a hearing alleging that the three phrases were false and that by making the statements Dr McCarthy was grossly careless. Two senior counsel were appointed and the matter was heard by a board including a judge.
It is particularly noteworthy that there was no complaint as to the ultimate diagnosis reached by Dr McCarthy.
It is difficult to conceive of any reason for proceeding with this by the complainant other than causing trouble for Dr McCarthy. It is difficult to understand why the Medical Board would go to such lengths to pursue it. There must be some sort of circuit breaker to head off these type of complaints.
The judge reprimanded Dr McCarthy for his indignant letter to the Board when he was informed of the complaints. He described KR’s complaint as “vexatious, malicious, inappropriate and incorrect“. He wrote “This man is currently behaving as he behaved on a number of fronts for many years and I don’t imagine any response would reassure him.”
It is difficult not to agree with Dr McCarthy no matter how inappropriate his language.
Furthermore the response of the judge may strike you as sanctimonious:
No matter how unjustified a complaint might be thought to be, members of the public are entitled to bring theirgrievances to the appropriate authority, and to have them investigated. They are entitled to be treated with respect.
When claimants make totally unfounded and ultimately damaging allegations regarding one’s professional competence out of what appears to be a sense of spite? One may give the appearance of respect but I would imagine most of us would feel anger and contempt although it was not wise to not denigrate the claimant no matter what the provocation.
One wonders what the emotional and physical toll was on Dr McCarthy. I wrote a paper about this some years ago. The paper was entitled “It’s not Fair!“and was about morbidity amongst healthcare providers following complaints.
The only satisfaction is that the good guy one, but at what a cost.
The Judgment (edited).
Dr Peter McCarthy is a consultant psychiatrist with many years experience. In 2006, he undertook a medical review of KR. The review was undertaken on instructions from KR’s former employer, Australia Post, for the purpose of workers compensation proceedings brought by KR against Australia Post in the Administrative Appeals Tribunal.
Dr McCarthy reviewed KR on 22 September 2006. He subsequently provided a report, dated 14 December 2006, to Australia Post. The Medical Board of Australia (Board) contends that three statements contained in that report were false, and that by making those statements, Dr McCarthy was grossly careless. The alleged inaccuracies are said to be grossly careless because of the significance of the statements to KR’s claim, and to his entitlement to receive workers compensation payments.
Two broad questions arise in relation to each of the allegedly incorrect statements.
1.The first question is whether the statement is inconsistent with what KR told Dr McCarthy during the consultation on 22 September 2006.
2.In that event, the question then arises as to whether the making of the incorrect statement amounts to gross carelessness for the purposes of s 13(1)(c) of the Medical Act 1894 (WA) (which was the applicable disciplinary provision applying to medical practitioners at the relevant time).
Dr McCarthy’s report was 10 pages in length. The first seven pages, in which all three of the allegedly incorrect statements are found, recited the history obtained by Dr McCarthy and concluded with his opinion. The balance of the report was given over to answering specific questions which had been asked of Dr McCarthy by Australia Post. In these proceedings, there is no complaint as to the ultimate diagnosis reached by Dr McCarthy.
The first ‘incorrect’ statement
Dr Mc Carthy wrote ‘[KR] admitted that his depression settled somewhat in 1998.’
The first thing that can be said about the first allegedly incorrect statement is that it comprises merely the first clause in a much longer sentence. The full sentence reads as follows:
[KR] admitted that his depression settled somewhat in 1998, but maintained that he continued to have fluctuating symptoms of anxiety and depression for the 6 years of his business, although it appeared his mood disorder was
not sufficient to motivate him to continue specialist treatment.
Two paragraphs earlier in the report, the following is said:
In 1998 he bought a bob cat and a truck and began working on his own business in April 1998 at house sites. He continued seeing Dr Fred Ng, Psychiatrist, who in his letter of 5 January 1998 reported that [KR] was making good progress on his anti-depressant medication Zoloft (sertraline) at the high but manageable dose of 225 mgs per day. Dr Fred Ng described his Major Depressive disorder as being in remission, i.e. having settled in January, although in his letter of 17 February 1998 he indicated that [KR] had become demoralised again due to a lack of work. [KR] had ceased seeing his Clinical Psychologist Graham Guest and thus the sychiatrist Dr Fred Ng indicated he adopted a more psychotherapeutic role in [KR’s] management, while [KR] remained on his anti-depressant medication. In June 1998 [KR’s] depression was in remission, and had remained in remission. It appears the opportunity to purchase his own bob cat and truck and to start his own business, had led to a settling of his psychiatric symptoms. His psychiatrist noted that [KR’s] morale and self-confidence, and his traumas from his difficulties at Australia Post ‘certainly continued to recede into the background’. He remained on his anti-depressant medication, his depression remained in remission, and he ceased seeing his psychiatrist sometime in 1998.
KR was cross-examined about his condition in 1998. When pressed, he reluctantly accepted that he had experienced some improvement as a result of his medication in 1998. He said that if his condition was 50% in 1997, it would have been 60% in 1998, and that he was ‘managing things better with the help of the drugs’.
As his report noted, Dr McCarthy had been sent a substantial number of earlier medical reports, including the reports of Dr Frederick Ng, KR’s treating psychiatrist. In cross-examination, KR ultimately accepted that, if the statement had said that ‘his depression settled somewhat in 1998 as a result of taking Zoloft’, then he would agree with that statement.
That concession is sufficient to dispose of the first complaint.
The effect of the statement is a proposition which KR accepts as accurate.
The Board also noted Dr Ng’s report of 8 April 1998 stated ‘I do believe that the major depression remains in remission due to the Zoloft’. Two months later, on 5 June 1998, Dr Ng reported a significant improvement in KR’s psychological state which he said ‘comes about as a result of feeling back in control of his destiny, and of being able to perhaps earn a living on his own accord’. He described KR’s depression as ‘remaining in remission’. Later that month, on 22 June 1998, Dr Ng described the depressive order as ‘currently in remission’ and said that he had responded exceedingly well to treatment so that his major depression ‘is now clearly in remission, and he is asymptomatic’. He described the prognosis as good.
Thus, the comment ‘his depression settled somewhat in 1998’ appears almost an understatement when measured against the contents of Dr Ng’s reports, which Dr McCarthy had before him and read prior to seeing KR.
The grounds for complaint seems to be that KR ‘did not admit or say that his depression settled somewhat in 1998‘ rather than the rather compelling support for Dr McCarthy’s statement from Dr Ng.
This invites consideration of what KR said at the consultation in September 2006. Dr McCarthy’s notes of the consultation show that events during 1997 and 1998 were discussed. We did not find KR’s evidence particularly reliable.His reluctance to accept the proposition, strongly supported by Dr Ng’s contemporaneous reports, that his symptoms had improved significantly in 1998 showed a tendency to recollect events in a way that supported his complaint against Dr McCarthy.
The second statement
Dr McCarthy wrote ‘He was somewhat vague whether he remained on medication, this was written in reference to the years between 1998 and 2004. The grounds of complaint was that [KR] told [Dr McCarthy) words to the effect that:
(i) between April [1998] and February 2004, he had worked as a self employed Bobcat driver;
(ii) whilst working [as] a self employed Bobcat driver, he had made approximately twelve applications for employment and four applications for income protection and workers cover and he had stopped taking Zoloft every time he completed an Application because he thought that each Application was more likely to succeed if he could manage without taking Zoloft;
(iv) he had resumed taking Zoloft within approximately three days of completing each Application;
(v) he had consulted with Dr Ng in October 2003 after which time, his prescription of Zoloft was increased to 275 mg daily;
(vi) with the exception of the periods of time when he stopped taking Zoloft, he had regularly taken Zoloft between 1998 and 2004 in varying doses of between 225 mg and 275 mg daily; and
(vii) he had remained depressed between 1998 and 2004.
In his written statement of evidence, KR said that he used words to the effect of those set out above. When questioned, KR he agreed that the reason he stopped taking Zoloft when he completed an application for employment or income protection insurance was that he wanted to be able deny that he was currently taking any medication. He said that the statement in his written evidence that he did that ‘every time’ he completed an application was a mistake, and that he only did that sometimes and had done so on the advice of a doctor although he knew that it was misleading. He said sometimes he would forget to take his medication, and sometimes he would go off it because he could not be bothered. He acknowledged that he told Dr McCarthy that there were times when he went off his medication.
Having heard KR’s evidence as to the frequency and duration of his periods off medication for various reasons, we have no clear picture of the extent to which he took himself off medication during that period. We thought Dr McCarthy’s comment that KR was ‘somewhat vague’ was correct.
KR might have been reluctant to discuss his behaviour that he knew was misleading. He was uncomfortable discussing that aspect of his evidence under questioning from counsel. We understand that Dr McCarthy’s comment expressed a conclusion and were not the actual words used.
The third statement
Dr McCarthy wrote ‘He has now ceased his Zoloft (sertraline) although it is not clear when and his current medication is …’. KR gave evidence that he said the words to the effect alleged by the Board. Dr McCarthy had no independent recollection of the discussion and relied on his notes to support the statement made in his report. Dr McCarthy was cross-examined and accepted the possibility that he may have misheard KR, although only on the basis that ‘anything is possible’.
Counsel for both parties accepted, and we agree, that the task for the Tribunal is not simply a question of deciding whose evidence is to be preferred. Both accepted that the Tribunal should be guided by the observations of Miller J in Hewett v Medical Board of Western Australia [2004] WASCA 170 at [119] – [121] where his Honour said:
It may be tempting in disciplinary proceedings for a tribunal to look to see who is telling the truth and who is lying, but there is a danger in following this path. It overlooks the fact that the ultimate question for a tribunal in these circumstances is whether the tribunal of fact is persuaded on the balance of probability that the allegations contained within the Notice of Inquiry have been made out.
In Briginshaw v Briginshaw (supra), Dixon J (at 362 – 363) formulated the appropriate reasoning processes that are required of a tribunal of fact sitting as the Board was in this case. His Honour said:
‘… Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of the kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency … It is often said that such an issue as fraud must be proved ‘clearly’, ‘unequivocally’, ‘strictly’ or ‘with certainty’ … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil case may, not must, be based on a preponderance of probability.
It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … but, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.’
This well-known and oft-cited passage stresses the need for the Board in this case to have approached its task by considering carefully as the primary issue whether it was satisfied to the requisite standard that the complaints had been made out. There is a danger that in looking first to see who was telling the truth and who was lying, the Board may have obscured what was the essence of its inquiry.
In this case, quite properly, neither counsel suggested that any of the witnesses were ‘telling lies’. The question remains, however, whether the Tribunal is satisfied to the requisite standard that the complaints are made out.
We are satisfied that KR did somehow convey to Dr McCarthy that, at the time of the consultation, he was not taking Zoloft.
As we have already noted, we have concerns as to the reliability of the evidence of both KR and JR (his wife) so that its weight is reduced to the extent that we are unable to be satisfied to the requisite standard that the report was false. It follows that the third complaint is not made out.
Dr McCarthy’s response to the Medical Board
When KR’s complaints were first referred to Dr McCarthy, he responded by letter to the Board. In that letter he described KR’s complaints as ‘vexatious, malicious, inappropriate and incorrect’. He said ‘This man is currently behaving as he behaved on a number of fronts for many years and I don’t imagine any response would reassure him’.
Dr McCarthy was cross-examined on those statements and it was put to him that they demonstrated an antipathy to KR which could only have emerged from his consultation with KR in September 2006, and provided a context against which the allegedly incorrect statements had been made Dr McCarthy denied that proposition.
We do not consider that those statements in Dr McCarthy’s letter of response to the Board, unfortunate as they are, should lead us to the inference suggested by counsel for the Board. The comments can more easily be construed as demonstrating a sense of indignation on Dr McCarthy’s part at the making of a complaint to his professional regulatory authority. Having said that, we would observe that the statements made by Dr McCarthy in his response were particularly unfortunate and ill-advised. No matter how unjustified a complaint might be thought to be, members of the public are entitled to bring their grievances to the appropriate authority, and to have them investigated. They are entitled to be treated with respect. Inflammatory responses respect neither the complainant nor the process. It is especially surprising to see comments of that nature made by a psychiatrist, albeit not the treating psychiatrist, in relation to a patient who has been treated over an extensive period for significant depression.
Conclusion
For the above reasons we find that the complaints of gross carelessness are not made out and the application should be dismissed. At the close of the hearing, counsel for Dr McCarthy foreshadowed an application for costs. The matter will be listed for directions on the question of costs.
Orders
1. The application is dismissed
2. The question of costs is listed for directions at 10 am on
13 November 2012.
I certify that this and the preceding [40] paragraphs comprise the reasons
for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A C, PRESIDENT
Do’s
1. Do read the referral letter and accompanying documentation before you see the claimant.
2. Do get a consent form signed (see one in Resources).
3. Do a mental status examination
4. Do complete the report as soon as possible.
5. Do come to an opinion.
Don’ts
1. Don’t tolerate rudeness.
2. Don’t readjust your schedule for a court appearance until you are guaranteed payment.
3. Don’t look at surveillance material in the absence of the claimant.
4. Don’t tell the claimant your opinion.
5. Don’t write what you think the referral party wants to hear.
More information about differential payments between states for the same services.
This table provides information about payments by states for psychiatric treatment funded by workers compensation schemes. I wrote a previous blog about the different rates of payment for reports by psychiatrists. ‘Australian fee schedules for independent psychiatric assessment’ It is surprising how Victoria lags behind the other states but on the other hand some of the other states are having cost blowouts with their schemes and one can expect little interest in any movement on fees.
| C
M B S |
A
M A |
Cons. Psychiatrist | Vic | NSW | SA | QLD | WA | NT | TAS | ACT | Com
Care |
| 320 | 65 | <15 min | $71.13 | $81 | $75.20 | $81 | $75.40 | $81 | $81 | $81 | $81 |
| 322 | 75 | 15-30min | $142.22 | $162 | $151.70 | $162 | $150.50 | $162 | $162 | $162 | $162 |
| 324 | 85 | 30-45min | $205.99 | $235 | $224.30 | $245 | $225.40 | $235 | $235 | $235 | $235 |
I have just read the most sensible article on DSM 5 that I have yet seen. I have posted a link to the article in ‘Publications’. This is from the May 2013 issue of The Monthly and is written by Professor Nick Haslam, professor of psychology at the University of Melbourne. I was particularly struck by his response to the naysayers. He writes “many of these revisions have drawn criticism, but the fiercest challenges have addressed the new ways in which DSM 5 might pathologise normal behaviour. This charge has been led by a psychiatrist, Alan Frances, primary architect of DSM IV. His new book, Saving Normal, was published a week before DSM 5. He is an incisive psychiatric critic of the new diagnostic regime. Many psychologists have also engaged seriously with DSM 5 despite deep concerns over diagnostic inflation and the neglect of social and cultural influences…. Other critics have been entirely dismissive. The British Psychological Society’s response to DSM 5 rejects the very idea of diagnosis. Clients should be assessed for specific problems, not assigned to categories, The Socirty objects to “the medicalisation of… natural and normal responses… which do not reflect illnesses so much is normal individual variation” – appointed repeats, mantra like, 37 times, even though DSM 5 never employs the concept of “illness”.
He takes to task other critics for attributing to DSM 5 opinion is that it has not expressed.
He makes the point that “it’s not obvious why people feel the need to save normality from psychiatry more than from dermatology. It is also not clear why entirely different principle should apply when we think about physical illnesses and mental disorders: the idea that one is objective and real and the other subjective and arbitrary smacks of an old-fashioned dualism. Rheumatology, for example, like psychiatry, recognises more than 200 distinct conditions, this classification is in a state of flux. Two rheumatology researchers could have been writing about psychiatry when they recently observed that for most conditions “we do not understand their (causation), and there are no “gold standard”, unequivocal clinical and laboratory features to distinguish one disease from another or even from normality.”
He goes on to say “if DSM 5 adds to the ways in which personhood can be stripped and identity tainted, than it deserves all of its criticisms. Understood correctly, however, psychiatric diagnosis does nothing of the sort. Disorder does not define one’s identity or essence: diagnosing a person is not like identifying species. The disorder is not even an alien “thing” that a person has, like an illness. It is merely a set of very human characteristics that bring suffering and impairment. Normality is not defined by what DSM 5 leaves out.”
I urge you to read the article.
The issue of confidentiality is problematic for civil forensic psychiatrists. Most of us err on the side of caution and have claimants sign a document acknowledging that the information they provide will be incorporated into a report. The information is otherwise kept confidential by me. I have no control over what happens to the report however.
We assume that because people arrive they have given implicit consent to release of information. I was involved in a recent matter before the Medical Board of Australia where the issue in question was that the “practitioner prepared and provided a report to try and company which included a possible diagnosis, without having met performed a clinical assessment of the complainant.”
in brief a complainant had arrived for a medicolegal assessment by a psychiatrist with regard to his workers compensation claim. He refused to sign the full disclosure document and was told the interview could not proceed. In the interim the psychiatrist overheard him dealing with office staff and thought he was aggressive and angry. Documentation provided to the psychiatrist indicated that he had been described as a difficult employee and “paranoid”. The psychiatrist wrote a briefing note to the insurance company stating why he had not been able to complete the examination. The psychiatrist went further. The psychiatrist wrote that he was concerned about the complainant’s behaviour and thought there was a “possibility that he does have a significant psychiatric illness” and “may have a paranoid disorder”. The psychiatrist urged the insurance company to warn future assessors that the complainant may be difficult and may make complaints about them although there was no indication of any physical threat.
This letter was used by the insurance company to deny the claim and, somewhat unwisely, the psychiatrist agreed to the release of this letter to support their decision. This led to the complainant making a complaint to the Medical Board of Australia.
Another experienced psychiatrist formed the view that he had breached confidentiality. My opinion was that behaviour had been observed in a public place ie the waiting room and that confidentiality did not apply. See definitions below.
Definitions of Medical Confidentiality
Psychiatry: The ethical principle that a physician may not reveal any information disclosed in the course of medical care.
McGraw-Hill Concise Dictionary of Modern Medicine. © 2002 by The McGraw-Hill Companies, Inc.
A substantive rule in bioethics saying that the information a patient reveals to a health care provider is private and has limits on how and when it can be disclosed to a third party; usually the provider must obtain permission from the patient to make such a disclosure.
Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health, Seventh Edition. © 2003 by Saunders, an imprint of Elsevier, Inc. All rights reserved.
confidentiality /con·fi·den·ti·al·i·ty/ (kon″fĭ-den″she-al´ĭ-te) the principle in medical ethics that the information a patient reveals to a health care provider is private and has limits on how and when it can be disclosed to a third party.
Dorland’s Medical Dictionary for Health Consumers. © 2007 by Saunders, an imprint of Elsevier, Inc. All rights reserved.
The second issue was whether he was entitled to report on the behaviour he had observed and overheard. In my view he was. The third issue was whether this constituted a psychiatric report. In my view it did not. I understand a psychiatric report to be amassing considerable amount of data, doing a mental status examination and using that information to form an opinion. This did not appear to be the situation. I thought the critical matter was whether or not the psychiatrist had been fully frank in stating what informed his concerns. I believed he had done so.
This matter raises the further issue of the experience of many civil forensic psychiatrists that if claimants are not happy with the report they make a formal complaint about the psychiatrist.
I would be interested in your views on this matter. By the way the psychiatrist on the matter referred to above was found to have no charges to answer.
I have provided for your interest a link to a consent form to release claimant’ s information.