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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 9, 2015

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

Section 11 Limit on costs for expert witnesses

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

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

Section 58 Application

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

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

McInnes Wilson Lawyers

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

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

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

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

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

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

ACT dumps Comcare for its public servants!

March 27, 2015

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

December 21, 2014

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

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

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

Victoria-psychiatrist convicted of WorkCover fraud

In early December 2014 a psychiatrist was convicted of WorkCover fraud in the Ringwood Magistrate’s Court. He was given a wholly suspended prison sentence and fined. This is a wake-up call to us all. We must be meticulous in our recordkeeping and ensure that what we charge is consistent with documentation such as appointment times. I can only feel sadness for the psychiatrist involved. Of course he did the wrong thing but at what a cost. He has destroyed his reputation and must have caused great distress to his family and friends.

Motorcyclists and accidents – do we see proportionately more motorcyclists than car drivers?

Motorcyclists and accidents – do we see proportionately more motorcyclists than car drivers?

Statistics from the Victorian Transport Accident Commission demonstrate a vastly increased lethality due to motorcycle riding compared with driving a car.

In the last ten years, more than 430 motorcycle riders and pillion passengers have been killed, and close to 9,000 riders and pillions have been seriously injured on Victorian roads. This represents 14% of all road fatalities in the last ten years and 16% of all hospitalised claims.

Of the 243 people killed on Victoria’s roads in 2013, 41 were riders and passengers of motorcycles, representing 17% of the 2013 road toll.

Motorcycles represent less than 4% of the number of registered vehicles in Victoria, and account for around 1% of vehicle kilometres travelled*. Around 9% of Victorian licence holders hold a motorcycle licence.

NSW Motor Accident Authority advises DSM 5 may be used

November 17, 2014

The recent guideline # 19 Determination of a Recognised Psychiatric Diagnosis noted that the The Motor Accidents Authority Permanent Impairment Guidelines – Guidelines for the assessment of permanent impairment stated “The impairment must be attributable to a recognised psychiatric diagnosis in accordance with the Diagnostic Statistics Manual of Mental Disorders (4th Edition) [DSM IV], Internal Classification of Diseases (10th Edition) [ICD 10] or a substantial body of peer review research literature

1 The impairment evaluation report must specify the diagnostic criteria upon which the diagnosis is based.”

In May 2013 the Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM 5) was released and in 2015 the Eleventh Edition of the International Classification of Diseases (ICD) is due to be released.

The Guideline stated that with the publication of the DSM 5 it may be unclear for Psychiatric Medical Assessors whether or not they can make a psychiatric diagnosis in accordance with DSM 5.

Preferred Approach
The DSM 5 may be considered by Psychiatric Medical Assessors as “a substantial body of peer review research literature.”(clause 7.13 MAA Guidelines) and apparently may be used together with DSM IV TR and ICD 10.
The Guidelines go on to state that any diagnosis based on DSM 5 must be clearly referenced and “must specify the diagnostic criteria upon which the diagnosis is based”,

However Psychiatric Medical Assessors were reminded that somatoform disorders, (Somatic Symptom and Related Disorders inDSM 5) are not assessed under the MAA Guidelines.
The guideline stated that the preferred interpretation is suggested to promote consistency of assessment and to assist the parties to understand the methodology behind the diagnosis of psychiatric injuries and associated impairment.

Changes to the definition of long-term severe mental illness save TAC millions!

October 27, 2014

According to The Age newspaper of 27 October 2014 The Transport Accident Commission has saved $142 million after the recent amendments in the Transport Accident Amendment Act that have defined severe long-term mental illness. I have written about this previously. The new definition requires people to prove that they have had significant symptoms for at least three years after a car accident despite treatment if they are to be eligible for common-law compensation. at the time we protested vigorously stating that few people with what we regarded as severe mental illness would meet the criteria. According to the newspaper the commission has not processed any claim for severe mental injury compensation under the new criteria since it was introduced in October 2013.

A letter obtained by Fairfax Media reveals that the Transport Accident Commission lobbied the government to 2 years for the change because it believed the old threshold for mental injury compensation was not financially sustainable. The commission’s chief executive, Janet Dore, wrote to former board members last month about its progress in the final year of the six year review of its finances. She said there had been a $142 million saving to the TAC scheme-this financial year, taking its total savings to $252 million, with no “hot spots” identified by actuaries for the first time in her tenure. “The cumulative result reflects significant erosion of the metal injury threshold, which was threatening long-term financial sustainability. It required two years of work to achieve legislative change to manage this issue,” she said.

Janet Dore confirmed she had written a letter saying “the TAC has a responsibility to ensure that the scheme remained accessible and financially viable into the future….

The commission made a $499 million profit this financial year down from its $973 million profit last year. When the law was changed the Victorian State government said it was not seeking to restrict access to compensation, but to ensure that compensation claims for mental injury were made “consistently”!

The government was talking bullshit, it is obvious that this was done to save money despite the TAC making a profit last year of $500 million. Dr Nigel Strauss was quoted as saying that most seriously ill psychiatric patients would miss out on compensation under the new criteria. John Voyage, head of Maurice Blackburn’s TAC Department estimated dozens of people were no longer eligible for mental injury compensation this year.

South Australian WorkCover changes reject psychiatric permanent impairment

October 23, 2014

(1) Subject to this Act, if a worker, other than a seriously injured worker, suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for loss of future earning capacity by way of a lump sum.

(2) An entitlement does not arise under this section if the worker’s degree of whole person impairment from physical injury is less than 5%.

(1) Subject to this Act, if a worker suffers a work injury resulting in permanent impairment as assessed under Part 2 Division 5, the worker is entitled (in addition to any entitlement apart from this section) to compensation for non-economic loss by way of a lump sum.

(2) An entitlement does not arise under this section if the worker’s degree of whole person impairment from physical injury is less than 5%.

(3) An entitlement does not arise under this section in relation to a psychiatric injury or consequential mental harm.

Significant increase in stress claims in Victoria and separately an overview of the relative incidence in workers and industries

Stress Claims in Victoria as of June 30 2014 (adapted from The Age 21 October 2014)

The annual number of claims for mental disorders has risen by almost 470 in five years while the annual amount paid out in compensation has soared by 45 per cent to $273 million. Job-related stress is increasing in Victorian workplaces with 58 compensation claims for psychological injuries being accepted every week.

Victoria’s two biggest worker compensation categories – musculoskeletal complaints and major sprains and strains – have either fallen or remained steady in claim numbers over the same period along with most other physical injuries. For the first time, mental disorders have overtaken wounds to become the state’s third-leading workplace injury.

WorkCover data shows the average individual compensation payout for psychological injuries has ballooned from $73,000 in 2008-09 to almost $90,000 in the past financial year.

Mental health group Beyondblue attributes the rise in work-related mental stress claims to reduced stigma, heavier workloads and increasing job insecurity. But it was also being driven by a heightened recognition of the connection between the workplace and mental health, the group said, with a series of high-profile civil lawsuits ending in six and seven-figure payouts from employers found at fault.

Last month, former teacher Peter Doulis was awarded more than $1.3 million in damages for chronic depression after he was found to have been allocated an unduly heavy workload of a western suburbs school’s worst-behaved students.

“Cases like these get people thinking about their own workplace and conditions, and reflecting more objectively about situations they may be tolerating,” Beyondblue head of workplace policy Nick Arvanitis said.

With an estimated one in five workers taking time off work due to feeling mentally unwell in the past year, industry groups and health advocates have urged employers to treat the mental health of their staff as seriously as physical health and safety.

The data below gives a more comprehensive overview of those industries and workers more likely to make stress claims.

PhD project to use workers’ compensation data to examine primary prevention of work related injury and illness in Victoria

March 27, 2014

The Institute for Safety, Compensation and Recover Research (ISCRR) has produced another newsletter. There is an interesting PhD Scholarship Opportunity focused on preventing work‐related injury and illness in Victoria with the Monash Centre For Occupational & Environmental Health part of the School of Public Health and Preventive Medicine,

Monash University, Melbourne. This is funded by the Institute for Safety, Compensation and Recover Research (ISCRR) .

The main objectives of this PhD project are to use workers’ compensation data to answer questions related to the primary prevention of work related injury and illness in Victoria; and to develop methods to integrate workers’ compensation data with other data sources (e.g. labour market survey information or emergency department data) and to examine questions concerning the use of workers’ compensation data for surveillance purposes. There is also said to be scope to conduct analyses comparing primary prevention performance across different jurisdictions.

The ISCRR, about which I have written previously, is a disappointment to me. I had expected that there might be some research looking at the neglected area (in academia) of impairment assessment. To my knowledge there have been no worthwhile studies on this enormous and vastly expensive area.

The sound you hear is my mind boggling – read on

March 7, 2014

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.

NSW intends to go from a compulsary third party insurance scheme to a no fault scheme for transport accidents

April 9, 2013

A pedestrian was hit by a car while walking on a footpath – it took seven years to resolve the case which resulted in the claimant receiving $6,000 to cover medical expenses, while legal costs amounted to about $50,000.

A person was hit by a car and the costs of legal, investigation and medical expenses was $190,000 – the victim received less than $30,000 for injuries suffered and the claim took eight years to resolve.

A motorist involved in a car accident was found to be at fault. He sustained a broken collar bone and had to take several months off his job as a labourer to recover. He was not able to claim for all his lost income as a result of the accident and subsequently found himself in severe financial distress.

A motorcycle rider was involved in an accident due to the road conditions – the rider was seriously injured but unable to claim compensation as no other vehicle was involved. Legal costs were $30,000.

ComCare Review – biggest crackdown in decades –

March 30, 2013

Federal public servants seeking workers’ compensation payouts face the biggest crackdown in decades. – ComCare Review (link to the Review)

A federal government review of the $1.2 billion Comcare insurance scheme has urged sweeping reform to curb dubious claims for psychological injuries, payouts for dodgy therapies, doctor shopping and outright fraud.

The review has made more than 147 recommendations to re-write the legislation on Commonwealth public sector compensation claims, with the aim of getting injured workers back to work and ending their “passive” reliance on compensation.

The taxpayer-funded insurer lost more than half a billion dollars in the 2011-12 financial year as the number of claims for psychological injuries in the public sector – many based on accusations of bullying and harassment – increased.

According to the review’s two reports – by Melbourne barrister Peter Hanks, QC, and former Defence Department head Allan Hawke – some long-running claims under the Comcare scheme have exceeded $2 million.

The review, ordered in 2012 by Workplace Relations Minister Bill Shorten, cited a case of taxpayers paying nearly $30,000 for massage therapy that had “no curative effect” and another of a Brisbane-based bureaucrat flown to a Buddhist meditation retreat in Alice Springs to treat his anxiety disorder.

In other cases that have made recent headlines – not mentioned in the review – a Commonwealth public servant was compensated, after a court appeal, for injuries sustained during a “vigorous” sex session in a motel room on a work trip.

And an underperforming Canberra public servant was compensated after she claimed one-on-one counselling sessions constituted bullying.

The reports do not call for cuts to benefits for injured workers but urge a shift from a payout-oriented insurance scheme to one that emphasises rehabilitation and a return to work.

The report says claims for psychological injuries in the public service have increased by 30 per cent in the past three years and is four times higher in the federal public service than for other employers.

Mr Hanks says compensation for these claims should not be paid for more than three months without a diagnosis by a properly qualified medical practitioner.

He also wants to see an end to payouts for mental stress caused by imaginary factors.

“It is an unfair burden on employers to make them liable to pay compensation for a psychological injury that is caused by an employee’s fantasising rather than by any aspect of employment,” he wrote.

Among the key recommendations is a no-fault, provisional liability that would cover injured workers for a three-month rehabilitation period and a shift in jurisdictions for workplace dispute resolution from the Administrative Appeals Tribunal to Fair Work Australia.

Mr Hanks wrote that Comcare’s legislative framework was supposed to be beneficial to workers but the insurer had a duty to spend taxpayers’ money wisely.

He also urged greater vigilance on doctors who signed off on compensation payouts and “that health practitioners are held accountable for their conduct, and that they do not exploit what is, in effect, a publicly funded scheme by overcharging, overservicing or providing services that do not meet basic professional standards”.

Mr Shorten said he would now consult ”stakeholders” on the reports by Dr Hawke and Mr Hanks.

“It is vital that the Comcare scheme is focused on early and effective intervention to promote recovery of injured workers,” he said.

“It is also critical that employers and Comcare are pro-active in supporting injured workers from the point of injury, during rehabilitation and when they return to work.”

GEPIC training in Victoria not happening in 2013

March 11, 2013

The Victorian Branch of the Australian Medical Association has been contracted to provide AMA4 training for the government. Nigel Strauss and myself have been the trainers of the GEPIC. We have just been informed that “due to the overwhelming number of psychiatrists that have completed the GEPIC module in recent years, the Government Authorities have decided not to include Psychiatry modules as part of this year’s AMA4 Guides Training program. At this stage the program schedule beyond 2013 has not been confirmed.”

I hear there are similar problems getting training in the PIRS in NSW. At this satage, if you have not been accredited you have to wait until 2014.

My experience at a seminar

February 17, 2013

Went to a seminar on Friday. The chair of a panel about Expert Witnesses was President of the ‘College of Legal Medicine’ and was proud of the name, although as someone pointed out to me, “You couldn’t have a College of Illegal Medicine!!”. He made a couple of extraordinary statements. He said he not only does not read any of the documentation before the interview and examination (he’s a neurologist) but he doesn’t even read the letter of instruction until afterwards, the other thing he said that was confusing was that when you give an opinion you are expressing a bias? go figure. He said that if he had any issues arising from reading the documentation he would call the person back.

As one of the panel said,’Ithink I have the intellectual capacity to read what someone else has read without necessarily having to agree with it’. The lawyer on the panel was horrified,’you have no idea how much time we spend on those letters of instruction and how critical that you answer the questions we ask’. The judge said he thought he was trying to be ‘provocative’.

I asked a question, prefacing my question by telling him I thought his opinion was very’idiosyncratic’. He seemed quite pleased being called idiosyncratic so I told him’be in no doubt that I mean it in the most negative sense of the word’. Well, there you are, poor students, poor claimants.

Anyway it reminded me of my early days of being an expert witness, who can we learn from and how do we pick the idiots. I was called to give evidence about a police officer who had been assaulted during his work and concussed. Later that day whilst intoxicated he had driven his car in a rampage around a car park smashing six other vehicles. In the course of my evidence I used the term “diminished responsibility”. There was an immediate uproar and the court was adjourned, the judge instructed the barrister for the defendant to find out from me what on earth I meant. I was embarrassed and bewildered. During the break, two very experienced psychiatrists told me, in effect, I was an idiot and way out of my depth. I could only agree with them. They made it clear that my use of the term “diminished responsibility” raised many issues and didn’t I know that “it is not a defence in Victoria”. Well I didn’t, but I was determined to learn something from this debacle, particularly because the defendant was found guilty and served 18 months.

At that time, and the situation has not changed, there was no formal training program in forensic psychiatry, particularly in the civil area. Essentially one had to learn by doing and learn by one’s mistakes. I want this to change, I hope this website helps.

Family Court – Psychiatrists Criticised

July 11, 2015