Medico-legal examinations during COVID-19
In response to the current COVID-19 restrictions, SIRA has updated the guidance for medico-legal examinations.
When scheduling a medico-legal examination, the insurer/referrer must consider whether attendance at an appointment is permitted by the public health orders in force at the time.
The current restrictions mean that:
The Productivity Commission Report on Mental health was released in December 2020. i was asked by the Victorian Faculty of Forensic Psychiatry to give a Zoom presentation. This is the result. I initially called it ‘A Curate’s Egg – good in parts’, but as I became increasingly disenchanted I changed the name to ‘The Good, the Bad and the Ugly.’ Two examples:
Prevalence of Mental Illness
Later the Report states:
About 17% of people experienced an episode of mental illness over the past 12 months:
It states that Mild conditions can be either self‑managed or managed within either primary care or community service settings.
Moderate conditions can require specialist support, including psychosocial support services and specialist mental healthcare.
Severe conditions need hospital‑based care or treatment from specialist community mental health teams and a range of community services to support their recovery.
Roughly one third of people with a severe condition have a persistent disorder or complex needs.
Commentary
Cost of Bullying
WorkSafe update 21 June 2021
From 1 July 2021, WorkSafe will provide provisional payments for mental injury claims.
Eligible workers and volunteers who submit a mental injury claim can access provisional payments for reasonable treatment and services while their claim is being determined.
Provisional payments will be available for 13 weeks, regardless of whether a claim is accepted or rejected.
We’ve included a stakeholder pack with information to help you understand the key changes and how your networks can support patients.
The pack includes sample copy and digital assets for you to download and on-share with your networks through your own channels.
https://comms.worksafe.vic.gov.au/link/id/zzzz60d02384916f4511Pzzzz60d01f3c4c463416/page.html
What you always wanted to know about secondary psychiatric impairment*
*but were afraid to ask
First – a brief survey of workers compensation
In 2050 B.C., ancient Sumerian law provided compensation for an injury to a worker’s specific body parts, for example, the loss of a thumb was worth twice the value of loss of a finger.
Ancient Greek, Roman, and Chinese laws
Industrial revolution vastly increased the extent/ rate of work injuries. Employers could be sued but not if:
German Chancellor Von Bismarck introduced workers’ compensation in 1884
Victorian Employers’ Liability Act 1886 abolished defence of 3 reasons above
Australian legislation – workers’ compensation
SA Workmen’s Compensation Act 1900
WA Workers’ Compensation Act 1902
Qld Workers’ Compensation Act 1905
NSW Workmen’s Compensation Act 1910
Tasmania Workers’ Compensation Act 1910
Commonwealth Workers’ Compensation Act 1912
Victoria Workers’ Compensation Act 1914
NT Workmen’s Compensation Act 1920
ACT Workmen’s Compensation Ordinance 1951
Victorian Workers’ Compensation Laws
The Workers’ Compensation Act 1914 (modelled on UK Workmen’s Compensation Act 1906)
The first ‘no fault’ statutory benefits scheme.
This scheme paid benefits for injuries “arising out of and in the course of employment” and operated concurrently with the right to sue.
Workers had to choose whether to receive statutory benefits or make a common law claim.
Table of Maims in 1915 amendment that continued almost unchanged until 1985
In 1948 ‘no fault’ extended to injuries ” arising out of or in the course of employment”.
1970s Problems:
A brief comment on the Table of Maims
The Table of Maims was a list of various injuries with a percentage of the total amount of compensation
The 1914 Act provided a rudimentary Table of Maims.
Special provision is made for the payment of a lump sum ranging from 5% to 100% of £500 in respect of total incapacity where the accident results in loss of a member, or of hearing, or of sight in one or both eyes.
Table of Maims introduced in the Workers’ Compensation Act 1915 e.g.:
Total loss of the sight of both eyes 100%
Total loss of a foot 65%
and
The latter 2 ‘maims’ was in the legislation in 1946, 1953, 1958, 1973 and 1975.
The Accident Compensation Act 1985 also included the Table of Maims (section 98) but the second of the 2 maims re psychiatric injury was changed to:
Psychiatrists were asked to comment on the percentage of
(later called section 98 claims). There was no method prescribed for determining this, it was a guess.
In 1992 legislation amended the Table of Maims
was substituted by:
An additional section was added –
The Workplace Injury Rehabilitation and Compensation Act (2013) replaced the Table of Maims with the No Disadvantage—Compensation Table listed in Schedule 4. Permanent brain damage and ’pain and suffering’ were excluded.
Accident Compensation Act 1985
ACA 1985 – now acknowledged as a well meaning disaster
workers got too much too soon and for too long – financial failure
The ACA 1985 introduced the American Medical Association Guides to the Evaluation of Permanent Impairment. This was the first use of the AMA Guides in Australia.
Chapter 12 Mental & Behavioral Disorders proved to be a major problem.
There was no method of combining scores and examples given were wrong. Impairment levels ranged from 5% to 60% for the same person. There was real concern that work related psychiatric injury would be excluded.
The User’s Manual was developed informally – the manual introduced the Median method and became the de facto standard, quickly impairment levels became more reliable. It is the basis of the GEPIC.
The Transport Accident Act 1986 was developed in conjunction with the ACA and lead to the formation of the Transport Accident Commission, it included:
Medical Panels were set up in March 1990
The Government recognized 2 major problems with stress claims leading to a significant budget blowout.
The first issue was dealt with in amendments in 1992. A new section was taken from Commonwealth legislation regarding ComCare:
S.82(2A).
There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following—
(a) management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker’s employer; or
(b) a decision of the worker’s employer, on reasonable grounds, to take, or not to take any management action; or
(c) any expectation by the worker that any management action would, or would not, be taken or a decision made to take, or not to take, any management action;
This graph illustrates the dramatic drop in the number of ‘stress’ claims both in overall terms and as a percentage of all claims. Ironically this proved to be a ‘paper tiger’. To my knowledge very few, if any claims were thrown out on this basis.
The second issue of the ‘psych top-up’ proved more intractable
Workers have a physical injury and become depressed. A back injury may lead to an impairment of 15%, the associated depression leads to a psychiatric impairment of 15% and the worker’s impairment has thus reached the 30% threshold for enduring payments and a common law claim.
The Government’s Problem
Serious injury claims went from 1 in 8 in 1993/4 to 1 in 4 in 1995/6 and were still rising.
The legal profession openly boasted that this was the loophole through which they get serious injury status for their clients.
In a survey of 300 claims, over 55% of workers with “serious injury” status after a psychiatric or psychological assessment had never had any psychological or psychiatric treatment, either before or after the assessment.
The financial impact of this loophole was in excess of $300 million.
Introduction of Secondary and Non secondary psychiatric impairment
This financial blowout lead to legislative action in 1996 by the Kennett Liberal government. There was no discussion with the RANZCP or the AMA. In late 1996 the government introduced amendments to the ACA 1985. Amongst the amendments was a new section:
Section 92 (2)
In assessing a degree of impairment under sub-section (1) regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence or secondary to, a physical injury
When introducing this section, the minister gave 4 examples of how this would work.
Example 1
The minister said that the worker’s psychiatric injury is a direct result of the explosion that caused the physical injuries and the psychiatric impairment.
He said: in that case the psychiatric impairment would be included in the worker’s overall impairment assessment for the purposes of determining serious injury.
Example 2
Minister: Any resultant psychiatric impairment would be included in the assessment of the worker.
He said ’In both the examples I have given the psychiatric component is not secondary or consequential to the injury. It is a direct result of the events or circumstances in the workplace that gave rise to the physical injury and as such would be included in determining the worker’s impairment level’.
Example 3
The minister said that:
The Physical impairment is 10 %, impairment from depression not included therefore no serious injury (impairment below 30%).
Eligible for payments if the secondary psychological condition or the physical injury meant unable to work.
The worker would receive benefits at 70 per cent of pre-injury earnings if classified as totally and permanently incapacitated.
Eligible for medical and like services
Compensation under the table of maims.
But no action against the employer at common law unless he qualified under the narrative safety net.
Example 4
The minister said:
impairment due to chronic anxiety excluded from worker’s impairment
Anxiety state did not arise out of the circumstances that gave rise to the initial physical injury.
Commentary
Examples 3 & 4 consistent with understanding of 2ndary impairment
By contrast, Examples 1 & 2 imply that ALL the psychiatric impairment from the work injury would be included. This is not our current understanding.
Now we would include impairment from PTSD and exclude impairment due to depression/anxiety from the physical injury!
Comments from the Labor Opposition
The Accident Compensation (Amendment)Act 1996 was passed December 1996
Section 91(2) In assessing a degree of impairment regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
Inserted into the Transport Accident Act 1997 Section S 46A
Result
There was widespread confusion for all. No one, including the courts, solicitors, barristers and psychiatrists knew how to apply this new section of the Act.
There were many newspaper articles about the perceived “injustices”.
One item claimed that a police officer who was shot at and developed PTSD would receive higher benefits than a police officer who was shot and wounded.
Confusion abounded!
How did I deal with this?
My first response
Follow the Minister’s first two examples:
For a worker or a transport accident victim who had both physical and psychiatric injuries from the same accident I assumed that the whole person impairment would be accepted.
Result: The courts took no notice of my explanation and told me I was wrong.
Second response
I iInterpreted the legislation strictly. In determining whole person impairment I took no notice of any impairment there was consequential or secondary to a physical injury.
Result:
“Doctor, what is the claimant’s whole person psychiatric impairment?”
“I have already told you”.
“But you have only given us the impairment that is not secondary to physical injury!”
“But that is what I am required to do.”
“Doctor, I will ask you again, what is the claimant’s whole person impairment?”
“I did not determine the claimant’s impairment secondary to physical injury as I am not required to do so”.
“Doctor, for the third time what is the claimant’s whole person impairment?”
In other words, my reading of the legislation was not regarded as correct.
My third response
I assumed that since the AMA Guides combined subsidiary impairments using a table, the same process should apply to combining secondary and non secondary psychiatric impairment.
So, more humiliation
“The worker has a whole person psychiatric impairment of 20% and the impairment that is not secondary to physical injury is 15%”.
“So the impairment that is secondary to physical injury is 5%?”
“No, the standard practice of the AMA guides is that subsidiary impairments are combined. According to AMA 4, the combination of two subsidiary impairments of 10% is 19%. I have used the same logic with regard to these subsidiary impairments.”
Not accepted.
My fourth response
I assumed that secondary and non-secondary psychiatric impairment were additive
determine whole person psychiatric impairment and impairment secondary to a physical injury, the remainder being impairment not secondary to physical injury. I finally got it right.
It reminded me of the Monty Python skit about the Piranha Brothers
If you paid us protection we beat you up-that didn’t work
if you didn’t pay us protection we didn’t beat you up-that didn’t work
if you paid us protection we didn’t beat you up-that worked!
Introduction of American Medical Association 4th edition
American Medical Association 4th edition published in 1993 introduced into Victoria in 1997
AMA Guides 4th edition would replace AMA2. Chapter 14 Mental and behavioral disorders included a Table.
Section 98 (8) stated that the Reference to AMA Guides referred to the American Medical Associations’s Guides to the Evaluation of Permanent impairment (Fourth Edition).
Two Problems with AMA4 Chapter 14
UNWORKABLE –
What to do? In Victoria we chose to expand the User’s Guide and produced the Clinical Guide to the Rating of Psychiatric Impairment (CGRPI) gazetted in October 1997.
In 1999 NSW also decided to use AMA4. There was recognition in NSW of the problems with Chapter 14.
Nigel Strauss and I gave a presentation about the Clinical Guide to the Rating of Psychiatric Impairment to a representative group of NSW psychiatrists.
They ignored our work and developed their own guide based on AMA 4 -The Psychiatric Impairment Rating Scale (PIRS). PIRS is a measure of disability and not impairment. NSW, Qld, WA, NT and Tasmania also began using AMA 4 or 5 and since the PIRS is an expansion of Chapter 14 it was also used, most use a variation of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment.
The concept of secondary psychiatric impairment spread to all states and territories except the Northern Territory and the Commonwealth, the ComCare Guides.
In NSW, WA, Qld and Tasmania it was called Primary and Secondary Psychiatric Impairment.
The Victorian Wrongs Act (1958) was amended in 2003 so that a claim could not proceed unless the physical impairment was 5% or more using AMA 4 and the psychiatric impairment was more than 10% according to the GEPIC.
The ACA was replaced by the Workplace, Injury, Rehabilitation and Compensation Act in 2013 (WIRCA (2013) and Section 91(2) became Section 56.
In 2013 South Australia implemented a new Workers’ Compensation and Motor Accident Act that used AMA5 and the GEPIC South Australia also implemented the notion of secondary and non secondary psychiatric impairment but called it ‘Pure Mental Harm’ and Consequential Mental Harm’..
Irony
The Labor opposition has been in power for 20 of the last 30 years. Despite their cries of apocalypse they have never sought to rescind Section 92A (now WIRCA S 56)!
GEPIC
Opportunity for an amended version of the CGRPI arose in 2005.
The major changes were:
These changes were incorporated into the new version renamed
The Guide to the Evaluation of Psychiatric Impairment for Clinicians (GEPIC)
Gazetted on 27 July 2006 and incorporated into subsequent legislation replacing Chapter 14 of the 4th edition of the AMA Guides.
Nigel Strauss and myself have trained 140 psychiatrists in use of the GEPIC
Workers Compensation issues continue – Plus ca change etc.
The Report of the Victorian Ombudsman-2020 Follow-Up Investigation into the Management of Complex Workers Compensation Claims is a follow-up investigation to the report published in 2016 and the further report in 2019.
The concerns about Claims Agent selecting ‘hired guns’ lead to centralization of Psychiatric IME bookings
The most recent Ombudsman’s report discusses appointments of IMEs, feedback regarding the new selection criteria, quality assurance issues and changes since the 2016 investigation.
Concern about the lack of availability of Psychiatrist IMEs lead to a 25% increase in fees in April 2019.
There are continuing concerns that WorkSafe do not acknowledge that the skill set required of an IME is additional to the generic skills of medical specialists and general practitioners.
The assumption is that IMEs can perform the tasks required without additional training. This leads to inadequate reports and an apparent vacuum with regard to measures to improve quality. The assumption made by WorkSafe is that their selection criteria, induction and service standards are adequate.
The Most Recent Activity
An Independent Review regarding options for changing the current agent model regarding the management of complex claims arose out of the Ombudsman’s report.
The Options paper was release in 12/2020 with written comments to be made by 29 January 2021.
Challenges
Fashions in Claims
RSI , in 1985/86 there were 7890 claims compared to 616 claims for RSI in 1994/95.
Stress now second highest cause of claims
Bullying up to 40 % of claims
Concerns re ‘hired guns’
The dominance of the Medical Agencies and concerns over independence.
No improvement in Return to Work rate
Need for RANZCP Section of Civil Assessment Psychiatry
I gave a PowerPoint talk on this topic on 21 December 2020. I looked at workers’ compensation legislation in Australia (briefly) and focussed on the origins of secondary and non secondary psychiatric impairment, primary and secondary impairment elsewhere except in South Australia where it is pure mental harm and consequential mental harm. I have discussed issues about this vexed topic previously. This is a word version of the talk.
The concept of separating out impairment into impairment that is secondary to physical injury and impairment that is not secondary to physical injury was introduced into Victorian legislation in November 1996. It is now almost 24 years later. It seemed timely for me to discuss the history of this development. It is now taken for granted but caused some years of turmoil. It is a concept that has been incorporated into most states and territories. It was developed for only one reason, to prevent a financial blowout and, as I have said previously “it is a medical fiction but a legal fact!”. Whilst doing research for this paper I came across “To Strike a Balance A History of Victoria’s Workers’ Compensation Scheme 1985-2010” by Marianna Styliannou that I have found very helpful. You can read it here. When I have completed this paper I will put it on the website.
Some of the issues raised by the Victorian Ombudsman are dealt with in the NSW fee schedule such as definitions of complexity. i continue to argue that the WorkSafe view that any medico can do IME work with out training in assessment and report writing is fatally flawed. Note that there is an induction process but it assumes competencies in the areas I have mentioned. Also not the fees in NSW and those in Victoria even with a 25% increase in April 2019 (because they could not attract enough psychiatrists to do the work?)
The Report of the Victorian Ombudsman-Worksafe 2: Follow-Up Investigation into the Management of Complex Workers Compensation Claims
This report is a follow-up investigation to the initial report published in 2016 and the further report in 2019. In particular I have focussed on the section entitled:
Oversight of the IME System (page 189)
This section discusses appointments of IMEs, feedback regarding the new selection criteria, quality assurance issues and changes since the 2016 investigation.
I think there is a fundamental lack of understanding by WorkSafe that the skill set required of an IME is additional to the generic skills of medical specialists and general practitioners. The assumption is that without additional training IMEs can perform the tasks required leads to inadequate reports and an apparent vacuum with regard to measures to improve quality.
The assumption made by WorkSafe is that their selection criteria, induction and service standards are adequate. These include:
The successful applicants must then participate in an induction process that includes:
The IME service standards state that reports should:
An adequate course of training should equip prospective IMEs with the skill set to do the work required. Such a training program should include a didactic course, mentoring and the opportunity for further training as required.
The importance of training is both with regard to new IMEs being able to function effectively in that role from the beginning but it also provides an avenue by which IMEs whose reports are thought to be problematic can be provided with further assistance to improve their level of skills.
Many prospective IMEs accept that such a training program would need to be self-funded.
IME work is a subspecialty that would involve generic training and training for particular craft groups..
The RACS does provide IME training but no other medical colleges do so. Most IMEs have to learn” on the job”.
Effective IME raining should include:
No IMEs are required to be trained in doing assessments yet all IMEs are required to attend impairment assessment training. This is a case of the tail wagging the dog.
These comments should be considered in the context of my assessment of Recommendations 13 and 14:
Recommendation 13
Provide different time allocations for independent medical examinations of injured workers with “complex claims” and remunerate IMEs for these accordingly.
The definition of a complex claim according to this report is:
A claim involving workers who are unable to work long-term and/or require long-term medical treatment.
Many of these involve chronic back problems and/or mental health issues. Psychiatrist IMEs assessed many claimants with the issues described in this definition.
At the moment Item PCT100 is the only item available for a first examination and report by a psychiatrist. This is the standard fee for all reports no matter the degree of complexity. The AMA anticipates a new fee schedule from WorkSafe. However the current fee schedule contains the following instruction:
Loadings additional to examination and report fee are subject to prior written approval from the WorkSafe Agent.
However sometimes complexity does not emerge until the interview is underway. This requirement does not allow for the emergence of complexity during the interview and should not be included in connection with the proposed fee. By contrast the Transport Accident Commission fee schedule allows for a fee range depending on the level of complexity of the claim. The AMA strongly urges that such a fee range be introduced.
In addition to issues with regard to an ability to work long-term and long-term medical treatment complexity is likely to be indicated by the amount of documentation. It is likely that more than 200 pages of documentation indicates that this is probably a complex claim. It is also likely that an interview using the services of an interpreter will extend the interview time significantly. This is not catered for by this fee schedule.
Feedback from IME psychiatrists is that although the fee increase is helpful it remains rigid and the fee level are still below that of most other states. See NSW SIRA WorkCover fee schedules for 2020 and definitions of a complex claim.
Recommendation 14 (page 227)
Provide guidance and/or training to IMEs regarding:
I think that Recommendation 14 should be reworded as follows:
Recommendation 14 (amended)
Accredit suitable training courses in conjunction with the relevant medical colleges.
Current IMEs should be “grandfathered” but encouraged to participate in such courses.
New IMEs should undertake training as part of their induction to become IMEs
Such training courses should provide for retraining for IMEs about whom concerns have been expressed.
Such training courses should have flexibility to respond to particular concerns including:
Surveillance material such as videos should be seen together with the claimant to provide the claimant with an opportunity to explain the behaviour observed and to confirm that the person in the video is the claimant. It is considered that for an IME to change their opinion on the basis of surveillance material without providing the claimant to comment is unfair.
Other Issues
There are other issues in this document that are of concern. The report notes that in paragraph 615:
Worksafe notes that it did undertake significant external consultation including through the IME Clinical Reference Group, a presentation to the AMA WorkCover/TAC committee, the establishment of a working group with representatives from the College of Surgeons and consultation with various medical faculties and peak bodies in relation to the IME criteria.
The AMA WorkCover/TAC committee were told the issue of a minimum of eight hours “direct clinical care each week” would not be discussed and there was a presentation with little discussion and certainly no agreement.
I also have concerns about this requirement as it seemed to ignore that all colleges have compulsory Continuing Professional Development that is required annually for medical practitioners to retain their registration with AHPRA. It is thought that the process of successful completion of CPD annually is a much more effective tool for determining ongoing clinical competence rather than a minimum of eight hours direct clinical care each week as this, in and of itself, does not imply competence.
Complexity
The ombudsman’s report is a “Follow-Up Investigation into the Management of Complex Workers Compensation Claims”.
Complex workers compensation claims, by definition are – complex!
Complex claims are usually associated with more documentation and an extended interview time. This is particularly the case with regard to complex claims involving alleged mental health issues. See NSW definitions below.
In paragraph 689 WorkSafe wrote:
…in April 2019, WorkSafe increased the fee for psychiatric IMEs by 25% and made other changes to the fee structure such as providing a higher fee if there were more than 20 pages of reading material.
This is the current WorkSafe fee schedule for psychiatrists compare this with the NSW schedule for 2020..
| Item number | Service description | Fee | GST | Total (inc GST) |
| PCT100 | First examination and report – Inclusive of conducting the examination, report writing, reading time 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. |
$1,131.02 | $113.10 | $1,244.12 |
| 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. |
$678.61 | $67.86 | $746.47 |
Psychiatrist – Loadings additional to examination and report fee are subject to prior written approval from the WorkSafe Agent.
| Item number | Service description | Fee | GST | Total (inc GST) |
| PCT200 | Report reading – 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. |
$49.72 | $4.97 | $54.69 |
| PCT201 | Report reading – Flat rate for reading of all reports 101 – 200 pages – This fee is payable once only per claim per WorkSafe Agent report request. |
$124.29 | $12.43 | $136.72 |
| PCT202 | Report reading – Flat rate for reading of all reports 201+ pages – This fee is payable once only per claim per WorkSafe Agent report request. |
$207.15 | $20.72 | $227.87 |
The NSW definitions and fee schedule for 2020 illustrate the difference in dealing with complexity.
NSW Workplace Injury Management and Workers Compensation (Medical Examinations and Reports Fees) Order 2020
Definition
MS008 or WIS008 Examination and report – psychiatric $1,426.40
IMS308 or WIS308 Video examination and report – psychiatric $1,426.40
IMS081 or WIS081 Examination conducted with the assistance of an interpreter and report – psychiatric $1,785.60
IMS381 or WIS381 Video examination conducted with the assistance of an interpreter and report – psychiatric $1,785.60
IMS092 or WIS092 Cancellation with 2 working days notice or less, worker or interpreter fails to attend the scheduled appointment/join the video appointment, or the worker or interpreter attends the appointment/joins the video appointment unreasonably late preventing a full examination being conducted. $408.90
I have edited this report for IMEs, especially IMEs. The report looks at the response of WorkSafe to the 2016 report. This report has a wider focus than IMEs but I have edited it to look at that section. I have included all the recommendations.
The report is scathing about some IME reports and the response of WorkSafe and Agents to complaints about reports. A number of recommendations were made including providing a fee for complex claims, training re aspects of opinions such as work capacity etc. However, as I have written in my draft response it fails to recommend comprehensive training for IMEs.
I have prepared a comprehensive submission to the draft report of the Productivity Commission on mental health. My concerns were about 9 main issues. Primarily the loss of focus on those with severe mental illness by the discussion about mental health as if it is a single entity, the naive comments about workers compensation, the lack of any detail about recruiting, training and paying for the extra workforce required to implement their recommendations. You can see my response here. The Productivity Commission report overview is here and volume 1 and volume 2 can also be downloaded.
Deteriorating performance of the NSW workers’ compensation scheme.
A review of the Nominal Insurer (NI) was commissioned in February 2019 to determine the reasons for deterioration in the NI performance. The final report was released in December 2019.
A report in the Australian Financial Review in September 2019 highlighted the problems.
The sustainability of the NSW workers compensation Nominal Insurer, which insures 3.6 million employees and collects over $2 billion in premiums a year, is in jeopardy according to Peter McCarthy the former workers compensation principal actuarial adviser to the State Insurance Regulatory Authority (SIRA).”I have been advising or working in personal injuries schemes like icare around Australia and overseas for nearly 35 years and I have never seen a scheme deteriorate as much in such a short time frame,” Mr McCarthy told The Australian Financial Review.
In Mr McCarthy’s view, if the scheme went into deficit, employer premiums would have to increase by between 45 and 60 per cent.
In addition to workers compensation, the $36 billion icare also insures builders and homeowners, provides treatment and care to those severely injured on NSW roads and protects over $193 billion of NSW Government assets. Workers compensation accounts for about 50 to 60 per cent of what icare does.
The company’s chief executive John Nagle rejected that the scheme was falling into disrepair.
However Mr McCarthy pointed to icare’s 2018 financial year results, which showed a blowout in the number of impaired premiums.
Impaired premiums increased by over $50 million from the 2017 to 2018 financial year, up from $35 million to $87 million. Further, as of the 2018 financial year there were $226 million in overdue premiums sitting on icare’s books, an increase from $39 million in 2015.
NSW Treasurer Dominic Perrottet said the Labor government had left the state’s workers compensation scheme facing a $4 billion deficit. “We have done the hard yards to repair their damage and provide financial stability, and icare’s board and management have been instrumental in this.”
Concerns over rising costs
Observers concerned with the health of the scheme also point to rising costs. According to a libaility valuation commissioned by icare in 2018 had a $1.3 billion surplus for the scheme. However, two years prior at June 30, 2016, a liability valuation by PwC estimated assets of $17.9 billion and liabilities of $14.6 billion, a surplus of $3.4 billion.
Medical costs for icare had risen by 40 per cent combined over the past four years. Mr Nagle said “we don’t control some medical costs as they are regulated.”
Data from the regulator showed that icare’s medical costs between the 2016 and 2018 financial years increased significantly more than those for specialised and self-insurers, and the Treasury Managed Fund.
icare’s return to work rate, which points to the speed at which injured workers get healthy and back to work, has fallen according to both SIRA data and icare data, although the degree varies. A major problem is that the definition of return to work differs between SIRA and icare.
SIRA has had concerns about whether injured workers were getting the right level of early support to assist in recovery, and whether premiums were being administered in a compliant, transparent and consistent way.
An overview of the executive summary
In 2015 NSW WorkCover was replaced by:
SIRA has had limited ability to enforce guidelines and standards or direct icare.
Icare implemented an ambitious model based on principles of triage, injured worker empowerment and straight through processing in January 2018. There is now one insurance agent for all new claims (EML).
The ambition of the model was matched by the ambition of the timeframe for implementation and the control by icare over EML. This has caused substantial confusion within the market and employers in particular, have complained about the lack of involvement in return to work (RTW) plans and claims verification. The new claims model has led to a significant deterioration in the performance of the NI, through poorer return to work rates, underwriting losses, no competition and therefore, concentration of risk.
The primary driver for the decline is the implementation and operation of the new claims model implemented by icare. icare has implemented a number of improvements to improve the performance of the NI. They have not reversed the decline.
The reviewer noted that an icare Board report shows that 46% of the NI’s claims are non-compliant with the legislation, and that icare considers this non-compliance as a lower order risk. This approach to compliance seems to indicate an absence of concern with regulatory matters.
Concerns were expressed in the submissions about lack of information about premiums, including reasons for marked increases, delayed or no response to queries and a call centre dealing with initial claims contributing to further delays, lack of proactive case management, inconsistent approach and errors, as well as lost paperwork. The outcome of this approach is seen as promoting reactive case management, poor communications and a lack of accountability.
Concerns were expressed about relevant case manager experience and skill levels,as well as a lack of understanding of workers compensation legislation/operations. Inappropriate hiring, inexperience and high staff turnover were all raised as issues. Positive comments were made about the motivations and attitudes of some individual staff
High caseload volume and inadequate resourcing were mentioned as adversely effecting the operation of the scheme. These issues were often connected with other issues of claims model design, communication, delays and RTW outcomes.
The single issue raised most commonly across claims submissions related to communication. The quality, frequency and clarity of communication from the NI and its agents was consistently seen by all stakeholders as an issue to be addressed. These communication issues were viewed as leading to delays, confusion, worse outcomes and increased frustration between participants.
Submissions specifically mentioned experiencing delays in obtaining approval and delaying required or agreed treatment.
The 2019 NI RTW rate has deteriorated to 84% from 93% in 2018 and 96% in 2016.This rate measures the percentage of injured workers who report having returned to work at any time.
The current NI RTW rate measured by a survey has reduced to 73% 83% in the 2018 NI RTWSurvey.
Many complained about the shift to the single scheme agent and the loss of choice and competition within the scheme. This had caused a deterioration in claims management as well as a depletion of the broader pool of experience of claims managers in the NSW workers compensation system.
The Medical Support Panel was thought to be completely unnecessary, creating more delays… The MSP process required multiple levels of internal review at EML, unacceptable MSP responses and further delays which effected the worker’s recovery and the employer’s premium.’
The review did not cover matters around medical treatment in any detail because the pre-eminent concerns raised were about delays to treatment caused by poor claims management. There were some concerns expressed about lack of choice and independent medical examiners, but this was regarded as a result of poor execution rather than an inherent problem with the new claims model.
The draft report from the Productivity Commission is a comprehensive overview of mental health issues in Australia. I have selected some sections relevant to civil psychiatry. However first a few general comments.
• In any year, approximately one in five Australians experiences mental ill-health. While most people manage their health themselves, many who do seek treatment are not receiving the level of care necessary. As a result, too many people suffer additional preventable physical and mental distress, relationship breakdown, stigma, and loss of life satisfaction and opportunities.
• The treatment of mental illness has been tacked on to a health system that has been largely designed around the characteristics of physical illness. But in contrast to many physical health conditions mental illness tends to first emerge in younger people (75% of those who develop mental illness, first experience mental ill-health before the age of 25 years) raising the importance of identifying risk factors and treating illness early where possible.
In these 2 paragraphs it is unclear as to whether or not mental ill-health and mental illness are the same. Are the statistics in the second paragraph relevant to the first paragraph?
The result is equivalent to a report discussing prevention, treatment and social support options for all physical illness without clarifying what conditions are being discussed. In other words, by taking mental ill-health (their term) as an entity it misses out on the syndromal issues regarding different causation,symptoms, effects of symptoms and appropriate direct and other care.
2. The costing ranges from accurate (2018-2019 Commonwealth expenditure on mental health care – $3.6bn ) to a questimate (The annual cost of informal care provided by family and friends). The basis of this and other such estimates are discussed in an appendix but are impossible to obtain with any accuracy, nevertheless it and other estimates are placed side by side with much more accurate figures. In my view this is misleading. This figure is also said to be a conservative estimate!
3. The section on work and mental health is all encompassing. However it does not explore the complex psycho-socio-medical milieu of many mental health claims. Those of us who do the work of assessing claimants know of these issues and are aware that relationship issues are usually paramount, no matter the listed cause of the psychological injury.
I was pleased to see it picked up on the discrimination against claimants with work related psychological injuries in accessing benefits.
here are a few excerpts:
Table 1 Estimated cost of mental ill-health and suicide 2018-19
Cost category $ billion per year
Australian Government expenditure
healthcare (includes prevention) 3.6
other portfolios (eg. employment, psychosocial support) 1.3
State and Territory Government expenditure
healthcare (includes prevention) 6.9
other portfolios (eg. education, housing, justice) 4.4
Individual out-of-pocket expenses 0.7
Insurer payments for healthcare 1.0
Informal care provided by family and friends 15.0
Loss of productivity and reduced participation 9.9-18.1
Cost to economy (excluding the cost of diminished health and wellbeing) 43-51
Cost of diminished wellbeing (for those living with mental ill-health or self-inflicted injuries, and/or dying prematurely, including those who die by suicide) 130
Other costs that overlap with (and cannot be added to) the above
Costs to the economy of suicide and suicide attempts (excludes the costs of pain and suffering of the individual and their family and friends) 16-34
Income support payments for those with mental ill-health and carers 9.7
• Cost to the Australian economy of mental ill-health and suicide
– $43 to $51 billion per year
Including State and Commonwealth costs re healthcare, education, housing and justice-insurer payments healthcare-informal care family/friends/ loss of productivity
• Plus approximately $130bn per year associated with reduced health and life expectancy
TOTAL COST $173bn – $181bn
Productivity Commission modelled the cost of forgone output due to mental ill health $9.9 billion – $18.1 billion in 2018-19 (does not include absenteeism cost)
Workers Compensation
Provisional liability and interim payments
Some workers compensation schemes provide support for all workers compensation claims — not just mental health related claims — prior to liability being determined: the New South Wales scheme refers to these arrangements as provisional liability, South Australia as interim payments and the Tasmanian scheme as ‘without prejudice’ payments (table 19.2).
Under these arrangements, the injured worker is assumed to be entitled to benefits (including for the loss of income), and is supported on the basis of this assumption, unless and until a decision on liability is made to the contrary. These arrangements provide for the payment of benefits (for a specified period) and medical expenses (typically to a specified amount) before a decision is made on liability under the relevant legislation. For example, the Tasmanian scheme makes ‘without prejudice payments’ for limited medical expenses up to the value of $5000 and the New South Wales scheme meets medical expenses of up to $7500 under provisional liability. This can reduce delays for an injured worker in gaining access to the appropriate medical attention and income and reduce other potential stressors while the decision of liability is being determined. However, where a final determination is made to deny the claim any payments made are recoverable as a debt in South Australia whereas in New South Wales and Tasmania the insurer is not able to recoup these payments.
Productivity Commission Recommendations
These recommendations, especially 1 and 2 are already being done but the return to work rate for people with work related psychiatric injury has not changed for more than 10 years.
The 3rd recommendation is problematic, who will pay and why is this limited to people with mental health problems?
I commend the draft report to you for whiling away a pleasant Sunday afternoon.
The Canberra Times (5 April 2019) reported that Canberrans injured in a motor vehicle accident will not be able to claim any insurance for anxiety or depression caused by the crash, under proposed changes to the compulsory insurance scheme.
The Barr government Motor Accident Injury Bill passed in principle on Thursday, with the details to be debated when the Assembly resumes sitting next month.
The ACT government is ditching its common-law compulsory third party insurance scheme in favour of a hybrid, no-fault model. But there are significant concerns about some of the exclusions proposed. Photo: Rohan Thomson
But the ACT Law Society and ACT Bar Association have written to all parliamentarians highlighting fundamental problems with the proposed scheme.
Claimants will have choose between getting compensation for pyschological or physical injuries, meaning they cannot combine the physical and psychological injuries they suffer from the accident.
Their insurer only has to pay for one whole person impairment assessment as well, so if the injured person wants to be assessed for both physical and psychological injuries, they will have to foot the bill.
The definition of psychological injury also excludes psychiatric disorders such as depression and anxiety, meaning people can only get compensation for conditions like post-traumatic stress disorder or “mental shocks”.
In a speech that drew heavily from the Law Society and Bar Association letter, Canberra Liberals leader Alistair Coe described the exclusions as “appalling”.
“I cannot overstate the effect these changes would have,” Mr Coe said.
“The government has not addressed the significant issues raised by stakeholders and the Assembly inquiry. The Canberra Liberals believe Canberrans should continue to have access to a comprehensive CTP scheme that supports the rights of motor vehicle accident victims.”
The Law Society and Bar Association also said provisions that would allow children still getting treatment for their injuries four and a half years after their accident to pursue more benefits were easily circumvented.
“There is nothing to stop an insurer ceasing treatment and care after four years and five months and effectively avoiding the automatic consequences,” they said.
However Chief Minister Andrew Barr said insurers could lose their licence if they did not follow the rules set out in the scheme which state they must provide people with reasonable access to treatment and care.
“Now of course there is no such thing as a perfect accident insurance scheme and as we’ve said from the start of this reform project, we’re aiming to deliver a scheme that best reflects the prioirties and the values of this community,” Mr Barr said.
“We have been upfront in acknowledging there will always be trade-offs and competing views when emarking on an overhaul this significant.”
Mr Barr said of the 1500 people injured a year on Canberra’s roads, only about 900 could access the existing, fault-based system.
“The changes we are making would mean around 600 more Canberrans would be covered,” Mr Barr said.
However Mr Coe said this was only achieved by slashing the rights of not-at-fault drivers.
“Quality of life payments would be cut by 80 per cent. There’d be a 31 per cent reduction in loss of earning compensation, a 26 per cent decrease in care costs and reimbursement of private medical costs and public hosptial costs would drop 17 per cent and 6 per cent respectively,” Mr Coe said.
This review by Mr Mansfield is explicitly not to comment on government policy so his statement that ‘There would appear to be no rational reason for distinguishing psychiatric injuries from other types of injuries in terms of compensability or causation under the RTW Act.204 This is a policy position that merits review once the RTW Scheme has matured.” Mr Mansfield also commented on the government’s introduction in awards for government employees that boost their benefits in certain situations, eg danger, He wrote that ‘the ‘modification’ of the RTW Act by those instruments, therefore, may in the future make the management of claims under the RTW Act in the case of Public Sector employees more difficult.”
Other issues regarding the Act were raised in submission
The discrimination against workers with psychological injuries is blatant. it was commented on in submissions from the SA branch of the RANZCP and AMA SA.
This year I decided not to apply to become an IME with WorkCover. Some years ago I had been an IME with the TAC but I notice that I had had no referrals for six months or so and contacted the TAC and was told that I had resigned! I protested about this and demanded to see what had been written. “Oh no, you resigned over the phone!” It was clear I was not wanted and this was a way of removing me from the scene. I continued to apply to be a WorkCover IME but the experiences of working with WorkCover led me to deciding not to reapply. Those who have reapplied both for the TAC and WorkCover have found it a demeaning experience. They have had to be interviewed in person by a functionary, there has been no input from anybody in the profession. They have had to agree to an onerous contract(called a declaration) in which they must abide by the fee schedule. To give you an idea this is what is said about dispute resolution
If a dispute arises in relation to my provision of services as an IME (other than a notice given by WorkSafe under clause 26 of this declaration), I or WorkSafe may request that the following dispute resolution process be utilised:
a) In the first instance the dispute will be discussed between myself and the WorkSafe’s Manager, Provider Performance and Quality;
b) If the dispute remains unresolved the matter will be referred to the WorkSafe’s Director, Worker Support and Health (or his or her nominee) and myself or my nominated representative;
c) If the dispute remains unresolved, it will be submitted to a mediator. The cost of mediation will be shared equally between WorkSafe and the IME; d) Where the parties to the dispute cannot agree on a mediator, the Chief Executive of the Law Institute of Victoria (or his/her nominee) will be asked to appoint a mediator; e) The above process will be carried out within 30 days of notification of the dispute.
WorkSafe Victoria have no interest in your safety and make no provisions for dealing with this issue. The fee schedule is lower than any other state or territory.
Wrongs act claims are usually complex and difficult. Most of the claims I see relate to medical negligence, bullying at school and falls, including some bicycle accidents where there was no car involvement.
There are significant problems with medical negligence claims in determining whether or not the impairment is secondary to a physical injury. For example a delay in diagnosis of cancer probably has a non-secondary component but what about failed surgery? What about stillbirths?
I have seen some claimants with complex physical and mental health issues prior to the alleged incident who relate the totality of their current health issues to the particular incident.
I was involved in a case some time ago with the claimant who had been prescribed sertraline by a psychiatrist and had developed an intractable rash that persisted for two years despite a variety of treatments and referrals to dermatologists. In desperation this woman searched the Internet and found there was a small number of cases where a rash arose from sertraline. She stopped the sertraline and her rash resolved.she made a claim against the psychiatrist. She was angry and distressed that she had had to put up with the rash for two years.
There seemed to be 2 questions, what was her diagnosis? Was her condition secondary to physical injury?
I took the view that the rash was a physical injury and that any psychiatric sequelae was secondary to that injury.
School bullying claims take a long time to assess. I usually interview the parents separately from the child. I am usually provided with school reports, psychologist reports and so forth. It is surprising how often the response of schools is so inadequate. On a number of occasions the offenders have received counselling but the person who was the subject of the bullying and that person’s parents become regarded by the school as a nuisance. One school principal wrote to a parent after yet another complaint saying “if you are not happy with a school, take your child elsewhere!”
Another issue is that psychiatrist have frequently asked by solicitors to do a GEPIC impairment assessment when assessing a Wrongs act claim. This is correct. However solicitors sometimes want you to include the GEPIC table and percentage impairment in your report. This is not correct. I have included a section of the act, note the highlighted section in (2).
WRONGS ACT 1958 – SECT 28LN Certificate of assessment
WRONGS ACT 1958 – SECT 28LN
(1) Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.
(2) The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
I was surprised and pleased to receive the following paper from SA . What a contrast to the situation in Victoria!
ReturnToWorkSA is seeking to gazette fees for medical services for 2018-19, to be effective 1st July 2018.
The Return to Work Act 2014 requires us to consult with stakeholders prior to a fee schedule being published and this paper forms part of the formal consultation process. We regard this as a valuable process, and all feedback is carefully considered.
This paper describes the proposed changes and fee calculation methodology for provider services and invites feedback. The formal consultation process will be for a four week period commencing on Wednesday, 7th February 2018.
If you have any questions regarding this document, please contact Simon Hynes, Program Lead, Provider Regulation and Support on 8238 5757 or email providers@rtwsa.com before the closing date so these can be considered within the consultation timeframe.
The Return to Work Act (2014) requires ReturnToWorkSA to set fees based on the average charge to private patients for the relevant service. The amount fixed for the service must not exceed the amount recommended by the relevant professional association.
ReturnToWorkSA obtains data from Medicare Australia to calculate average private charges for provider groups. Fees are then adjusted relative to this benchmark, based on Scheme needs.
The fee increases recommended in this paper (excluding GP consultations) have been calculated after taking this information into consideration.
ReturnToWorkSA with the Australian Medical Association (AMA) through a Memorandum of Understanding has agreed to parity with published AMA rates for General Practitioner Attendance fees up to but not exceeding an annual 5% increase.
The following table illustrates the Average Private Charge (APC) changes, the percentage differences for APC and Medicare charges and the proposed changes for the ReturntoWorkSA medical fees:
| APC change for 2017-18 | RTWSA vs
APC for 2017-18 |
RTWSA vs
Medicare Charge for 2017-18 |
Proposed RTWSA Change | |
| General Practitioner Attendance fees (Within Schedule 1A) | -0.2% | 41.1% higher | 96.5% higher | 1.8% increase (AMA rate equivalent) |
| Remaining Schedule 1A and 1B fees | -0.2% | 41.1% higher | 96.5% higher | No increase |
Given there has not been an increase in average private charges for medical fees during 2017-18, there is no proposed increase to medical fees (excluding General Practitioner Attendances) for 2018-19.
To enable fees to take effect from 1st July 2018, ReturnToWorkSA will:
If you have any questions or comments regarding this paper, please contact Simon Hynes, Program Lead, Regulation and Scheme Support on 8238 5757 or email providers@rtwsa.com by close of business on 7th of March 2018.
I have devised a method of refining your GEPIC scores using the severity table on page 1569 in the Victorian government Gazette dated 27 July, 2006. See how it works for you?
How to use the Severity Rating Table in the GEPIC
Severity Rating Table in the GEPIC (p1569)
| Classes | 1 | 2 | 3 | 4 | 5 |
| Low | 0-1% | 10-12% | 25-30% | 55-60% | 75-80% |
| Medium | 2-3% | 14-16% | 35-40% | 65-70% | 85-90% |
| High | 4-5% | 18-20% | 45-50% | 70-75% | 95-100% |
For example:
1L, 2H, 2M, 2H, 3L, 3M – Median Class 2
Severity ratings adjusted for Class 2, below = L above = H
1L = L, 2H = H, 2M = M, 2H = H, 3L = H, 3M = H
In order LMHHHH – median severity = H
High severity in Class 2 18-20%
WPI is 20%
Worked Example
Determine Impairment and severity of the impairment within the median class.
GEPIC Table
1L, 3M, 2M, 3M, 3M, 3M – Median Class 3 (no secondary or consequential impairment)
Severity ratings adjusted for Class 3, below = L above = H
1L = L, 3M = M, 2M = L, 3M = M, 3M = M, 3M = M
In order LLMMMM – median severity in Class 3 = Medium
Medium severity in Class 3 – 35-40%
WPI Pure Mental Harm or Non secondary impairment is 35%
The RANZCP Committee for Continuing Medical Education have told us that the following activities would meet the new 5-hour (Section 3) ‘Practice Development requirement’:
I have started some of this recently. I have a questionnaire for claimants, so far 31 people have completed it. I am refining a questionnaire for referrers and
I have been using http://www.austlii.edu.au/ to look at judge’s decisions about cases in which i have been a witness – interesting reading! It lists more than 600 but many of
those are referring to the GEPIC that I co-authored with Nigel Strauss and George Mendelson. i will find out more about this structured tool business.
It seems onerous but doable.
There were complaints by the ombudsman that claims agents were using preferred psychiatrists, WorkSafe have endeavoured to deal with this by centralising the appointment process however anecdotally it appears that they have outsourced this to others including eReports and other such agents totally going against the concept they are espousing.
Read below to see the drama unfolding. I will keep you informed
Since my last blog in June 2017 there have been further meetings with representatives of WorkSafe and representatives of the College and the medicolegal group. They intend to centralise all appointments for psychiatrists so as to prevent the notion of preferred psychiatrists and we expressed our concerns about being locked into providing timeslots with no guarantee of payment amongst other things. We have raised a number of other issues with them including funding but they refused to deal with this and it is clear that they have their own agenda (as always).
In the meantime we heard that eReports and other agents had been promised a certain number of appointments a week. We had great concerns about this.this was accentuated by the WorkSafe draft Service Standards document, the relevant parts were as follows:
2.2 The person to be examined must not be kept waiting for the examination for an unreasonable time. IMEs should aim to see Injured Workers within 30 minutes of the scheduled appointment time. In the event that the Injured Worker has not presented for the appointment time, it is up to the discretion of the IME as to whether the examination will go ahead.
2.3 IMEs should notify the referring case manager of any appointments that they need to cancel as soon as is practical after they become aware of the need for the cancellation, to allow the case manager to rebook the appointment with the next available IME.
2.4 IMEs should accept referrals or undertake an examination for conditions for which they are qualified and experienced to provide an expert independent opinion.
The following letter was sent to WorkSafe
We write to you on behalf of the Victorian Medicolegal Group concerning the above proposed “requirements”.
The Medicolegal Group represents the vast majority of psychiatrists engaged by WorkSafe as accredited Independent Medical Examiners. As such we have always considered ourselves to be an integral component of the Victorian WorkSafe system. Engaged by WorkSafe under the terms of the Accident Compensation Act 1985, our role has been to provide expert medical advice to assist WorkSafe in determining the outcome of claims and assisting with WorkSafe’s aim of returning injured workers to appropriate employment.
Over the years, we have demonstrated our willingness to proactively assist WorkSafe. For example, our members have conducted training sessions in report writing, provided quality assurance monitoring and even the development of the gazetted measure of impairment for Mental Disorders and training in its use.
The Medicolegal Group also facilitates monthly peer review group meetings for psychiatric IMEs, a critical element in optimising the ongoing production of high quality psychiatric reports for WorkSafe. We see no reason why this cooperation should not continue into the future and indeed is enhanced.
Our concern is with the changes to the booking systems in the proposed arrangements. We believe that it is unfair to request any contractor – let alone a medical professional – to make available blocks of hours on the possibility that these may be contracted. Where these hours are not actually booked for sessions, the Authority does not propose to compensate the practitioner. We believe that this is unduly harsh and has the potential to seriously affect the viable operation of our practices. We would point out that this system has, to an extent, been trialled with respect to stress claims and has already resulted in the realisation of these concerns. The planned roll-out of these changes to cover all bookings will only exacerbate the problems associated with this new process.
It is for this reason that members of our group have not signed the proposed agreement until we have resolved this matter.
We would point out that we have already endeavoured to resolve this matter directly with Worksafe but have been unsuccessful in receiving any meaningful response, if at all. Our concerns over this situation have been heightened due to the fact that, under the terms of the proposed agreement, it is the intention of WorkSafe to institute this new booking system by mid-August. As a consequence, on 28th June 2017, we sought urgent discussions with WorkSafe to propose an alternative booking system that we believe addresses the real needs of the Authority. Unfortunately we have received no reply.
In addition, correspondence and communications from corporate medicolegal providers, claiming to have agreements with Worksafe to undertake up to thirty psychiatric IME appointments per week, suggest that WorkSafe has sought arrangements with those providers outside the parameters of the agreement proposed to individual practitioners. We consider this a breach of good faith.
We believe that this situation could have been avoided if WorkSafe had in place a process of proper consultation with the profession to discuss changes such as these prior to their being issued. We note that we were advised by Worksafe representatives of the proposed arrangements at a face to face meeting in June, and expressed our concerns at this time. However this was not a consultation as Worksafe has proposed to roll-out the new requirements with no attempt having been made to respond to our concerns.
It is in this regard that we propose a regular process of consultation with the profession as a forum to highlight and discuss changes and improvements to the processes of our engagement and any other matters relevant to our engagement. We believe that this would restore good-faith relations between WorkSafe and our profession.
We would also point out that we write to you as a result of the failure of communication by officers of WorkSafe, who have failed to respond to our correspondence of the 28th June 2017 requesting urgent discussions to identify problems and find solutions.
Again we would stress that we believe that this is an unfortunate situation, given the history of previous cooperation between all parties concerned. We would appreciate the opportunity to address these issues to you in person at the earliest opportunity.
The Senate Community Affairs References Committee
Complaints mechanism administered under the Health Practitioner Regulation National Law May 2017
LIST OF RECOMMENDATIONS
Recommendation 1
5.14 The committee recommends that AHPRA review and amend the way it
engages with notifiers throughout the process to ensure that all notifiers are
aware of their rights and responsibilities and are informed about the progress
and status of the notification.
Recommendation 2
5.24 The committee recommends that AHPRA and the national boards develop
and publish a framework for identifying and dealing with vexatious complaints.
Recommendation 3
5.28 The committee recommends that the COAG Health Council consider
whether recourse and compensation processes should be made available to health practitioners subjected to vexatious claims.
Recommendation 4
5.34 The committee recommends that AHPRA and the national boards
institute mechanisms to ensure appropriate clinical peer advice is obtained at the earliest possible opportunity in the management of a notification.
Recommendation 5
5.39 The committee recommends that AHPRA immediately strengthen its
conflicts of interest policy for members of boards and that the Chair of the board should make active inquiries of the other decision makers about actual or potential conflicts of interest prior to consideration of a notification.
Recommendation 6
5.44 The committee recommends that AHPRA develop a transparent
independent method of determining when external advice is obtained and who provides that advice.
Recommendation 7
5.48 The committee recommends that AHPRA consider providing greater
remuneration to practitioners called upon to provide clinical peer advice.
Recommendation 8
5.56 The committee recommends that AHPRA formally induct and educate
board members on the way the regulatory powers of the board can be used to
achieve results that both manages risk to the public and educates practitioners.
Recommendation 9
5.61 The committee recommends that AHPRA conduct additional training with
staff to ensure an appropriately broad understanding of the policies it
administers and provide staff with ongoing professional development related to the undertaking of investigations.
Recommendation 10
5.67 The committee recommends that the COAG Health Council consider
amending the National Law to reflect the Psychology Board of Australia’s policy
on single expert witness psychologists acting in family law proceedings.
Recommendation 11
5.71 The committee recommends that the COAG Health Council consider
making a caution an appellable decision.
Recommendation 12
5.74 The committee recommends that the COAG Health Council consider
whether notifiers should be permitted to appeal board decisions to the relevant tribunal.
Recommendation 13
5.80 The committee recommends that AHPRA take all necessary steps to
improve the timeliness of the complaints process and calls on the Australian
Government to consider avenues for ensuring AHPRA has the necessary
additional resources to ensure this occurs.
Recommendation 14
5.81 The committee recommends that AHPRA institute a practice of providing
monthly updates to complainants and medical professionals whom are the
subject of complaints.