I use DragonDictate for writing reports, this can that lead to amusing (even Freudian) errors. I thought you may enjoy these ones from 2013.
He became involved in an altercation with a friend who was eating his dog
He expects to work with the penises in fitting and turning
They were living on their father’s thumb
One brother is a cockroach mixer
She continued to feel miserable and depressed and spoke to her general practitioner and was referred to as a carcass.
Apart from her family she enjoyed running and walking in wet cement weekly.
Her medical practitioner suggested disgusting counseling.
He had an episode of laryngeal spasm and in September the gander lost his voice.
He wore brochures for 3-4 hours per day
He slept with his maternal grandmother in a field for three years
(heading) FANNY MEDICAL HISTORY !!!
He has flown a number of times over the year and has fractured his nose and damaged his left eye.
He and his coffin moved to a unit together.
She had a daughter and had a thyroidectomy which fixed the problem
He and other members of the Battery were fired to Vietnam
He developed a mild adjustment order with regard to the President as a result of his facial scarring
He has a loaded libido and has to be careful with position
His sister is a nurse who lives standing up
Her mother died suddenly of a miserable haemorrhage
He had several more fractures of both wrists on six or seven occasions as a result of his many flights
She was taken to the clinic and x rated.
She became very regressed and was incontinent of faeces and Europe
As you may remember I have already written about this Act. Despite numerous discussions, pressure from various groups and meetings with representatives of the Transport Accident Commission there were no changes to the bill.
On November 14 2013 the Victorian Government passed the Transport Accident Amendment Bill 2013. The relevant sections for psychiatrists are the following;
TRANSPORT ACCIDENT AMENDMENT ACT 2013
SECT 21
Amendments relating to reimbursement of medical reports
(1) After section 60(2E) of the Principal Act insert —
“(2F) For the purposes of subsection (2)(a), the Commission is not liable to pay as compensation the reasonable costs of medical services that are the provision of a document obtained for medico-legal purposes, or related to medico-legal purposes unless the document—
(a) is requested jointly by the Commission and the person who is injured; and
(b) is provided jointly to the Commission and the person who is injured; and
(c) is provided by a registered health practitioner within the meaning of the Health Practitioner Regulation National Law.
(2G) For the purposes of subsection (2F), a document obtained for medico-legal purposes includes a document obtained for any of the following purposes—
(a) for the purposes of determining the degree of impairment under section 46A, 47(7) or 47(7A);
(b) for the purposes of Part 6 or Division 1 of Part 10;
(c) responding to a decision of the Commission under Parts 3 and 4 or in contemplation of such a decision;
(d) for the purposes of an application under section 77 for a review of a decision, or in contemplation of such an application.
(2H) For the purposes of subsection (2F), a document is not obtained for medico-legal purposes if the document is obtained from a person’s treating medical practitioner.
Amendment of section 93 (common law damages claims for mental injury due to injury or death of tortfeasor)
After section 93(2) of the Principal Act insert —
“(2A) A person who is injured as a result of a transport accident may not recover damages from a person indemnified by the Commission under section 94(1) or from the Commission in respect of a vehicle to which section 96 applies if—
(a) the injury is nervous shock or other mental injury; and
(b) the person was not directly involved in the accident and did not witness the transport accident; and
(c) the mental injury or nervous shock was suffered as a result of the injury or death of another person who was directly involved in the transport accident; and
(d) the transport accident was caused—
(i) in the course of the other person referred to in paragraph (c) committing, or intending to commit suicide; or
(ii) solely or predominantly by the negligence of the other person referred to in paragraph (c).”.
SECT 27
Amendments relating to serious injury applications
After section 93(17) of the Principal Act insert —
“(17A) For the purposes of paragraph (c) of the definition of “serious injury”, a person has a severe long-term mental or severe long-term behavioural disturbance or disorder if that person, for a continuous period of at least 3 years—
(a) has a recognised mental illness or disorder (other than abnormal illness behaviour) as a result of a transport accident; and
(b) displays symptoms and consequent disability that have not responded, or have substantially failed to respond, to known effective clinical treatments provided by a registered mental health professional who is registered under the Health Practitioner Regulation National Law to practice (other than as a student); and
(c) has severely impaired function with symptoms causing clinically significant distress and severe impairment in relationships and social and vocational functioning.”.
Commentary
I have already commented on the concerns myself and others have had about these amendments. I have highlighted the major absurdity
a registered mental health professional who is registered under the Health Practitioner Regulation National Law to practice
There ain’t no such person! There is no category for ‘registered mental health professional’ in the Health Practitioner Regulation National Law and no-one can register in this category with AHPRA. We told them but they did not listen, or care.
The following has been “borrowed” from the Slater and Gordon website.
New Transport Accident Commission laws to restrict common law claims, particularly for severe psychiatric injuries
On November 14 the Victorian Government passed the Transport Accident Amendment Bill 2013. The legislation is the latest in a series of actions taken by the TAC over the last 2 years that make it harder for seriously injured Victorian’s to make a common law claim when they have been seriously injured.
The main changes to TAC compensation laws are as follows;
As soon as this legislation became public, organisations representing social workers, psychiatrists, psychologists, health and other allied health professionals, emergency services workers, community organisations and the Law Institute of Victoria wrote to the Government calling for consultations to address a range of concerns about the proposed changes. The Government decided to proceed with the Bill without addressing these concerns.
The Bill is unlikely to significantly affect you if your common law claim (serious injury application) was commenced before 16 October 2013. If you have any questions about these proposed changes and how it may impact on your case it is best to speak with one of our expert lawyers.
WorkCover Changes Queensland – as from October 2013 – Edited for Psychiatrists
These changes are effective from 15 October 2013 and arose from some of the recommendations of the Parliamentary Inquiry into Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme:
The introduction of a threshold of greater than 5% degree of permanent impairment (DPI) to access common law damages. This applies to injuries from 15 October 2013. For injuries that occur over a period of time, the date of injury is considered to be the date of initial health practitioner consultation for the injury.
Prior to these legislative changes there was no threshold.
WorkCover Qld are working with the Office of Fair and Safe Work Queensland (OFSWQ) – the Regulator – to develop training for doctors on the new Guide and updating Notice of Assessment forms. The Regulator will publish the GEPI in the Queensland Government Gazette.
These changes are effective from 29 October 2013:
• Employment to be ‘the major significant contributing factor’ for psychological or psychiatric claims.
For physical injuries the definition remains unchanged stating ‘Employment to be ‘a major significant contributing factor’ for psychological or psychiatric claims’. Note the term ‘ the major significant contributing factor’, this is a much mpre stringemt test than a major significant contributing factor.
The committee recommendation was: The Committee recommends that the current definition of injury be retained in its current form with the exception of psychological injuries which are addressed separately in section 4.4.
• Employers can request a prospective worker to provide them with information about pre-existing injuries or medical conditions.
Disclosure of pre-existing conditions applies to ‘employment processes’ from 29 October 2013. An employer may ask a prospective worker in writing about pre-existing injuries or medical conditions. The request must be accompanied by specific information about the future duties and the implications if the worker fails to properly disclose their conditions. A worker may not be entitled to compensation or damages if they have knowingly made a false or misleading disclosure about an injury or condition and they suffer an aggravation of that injury or condition.
This provision is going to make it more difficult for people with any mental health problems to gain employment.
Bear in mind the reasons for these legislative changes:
The objectives of the Act are:
1. To implement the Queensland Government’s response to the Finance and Administration Parliamentary
Committee’s report on its inquiry into the operation of Queensland’s workers’ compensation scheme.
2. To make changes to the basis for assessment of impairment and to align the method between the statutory and common law provisions of the scheme.
Over the Last two weeks I have been trying to lobby the Victorian government to change their “Transport Accident Amendment Bill 2013” in particular because of the definition of serious mental illness, the other sticking points are only paying for reports jointly agreed to by the Transport Accident Commission and victims (read lawyers) and concerns about common law claims. I have done two media interviews, spoken to government and opposition members and a consortium of solicitors mainly focusing on the definition of mental illness in particular. There have been street demonstrations by emergency service workers and dispiriting parliamentary debate. The thing I found particularly annoying was that the definition is just dumb, it refers to “registered mental health professionals with AHPRA (I’m paraphrasing). There is no such group. We psychiatrists are not “registered mental health professionals” we are registered medical practitioners, similarly with psychologists! There is no mention of mental health nurses or of social workers.
The issue is really about the usual terror that all governments have about people with long-term mental health problems overwhelming the system. This of course has led to people with mental illness being excluded from lump-sum payments for WorkCover claims in South Australia and the significant restrictions on claiming benefit for mental injury in New Zealand (see relevant legislation).
The opposition are vehemently opposed to the legislation but I thought their attack was all over the place and they certainly did not seem to grasp the particular issues we have been talking to them about. It seemed more an opportunity for pointscoring and in particular catering to their union base rather than dealing with the substantive issues. I guess that’s politics.
As secretary of the College for 6 years I found that dealing with government was much easier if you acknowledge their good intentions, whether or not there were any and suggested areas of difficulty, offering solutions. This seemed far more effective in bringing about change than just heated rhetoric.
I will keep you informed about what transpires. In the meantime South Australia is proceeding with a no fault scheme for motor accidents including AMA 5 and, surprise, surprise, the GEPIC. We have been told the GEPIC was the only system they had seen that seemed to make sense. Unfortunately they have adopted the Injury Scale Values used in Queensland. What this means effectively is that government can arbitrarily decide what level of impairment relates to what ISV value and only people with an ISV value above a certain level receive payment.
I have been doing this work for more years than I care to remember. Recently I discovered that I have written 23,000 reports since 1996. My mind boggled (I have used that term for years and never knew what it means. According to the Merriam Webster dictionary it means: to be surprised, confused, or alarmed (esp in the phrase the mind boggles) well that seems to express what I thought. But as someone said of Vivaldi ‘he didn’t write 600 concertos, he wrote one concerto 600 times’ was I merely repeating myelf ad infinitum! But I digress. Nevertheless, I am still confronted with challenges, not least dealing with some claimants. I thought you might be interested in hearing about two recent situations, one of which turned out badly. I have de identified these as much as possible, not least because of fears of retribution from one of the claimants!
The first involved George, a middle-aged man who I had seen two years previously. He claimed to be a hard-working man with a wife and three children who was a factory worker. He had been injured in a rear end collision in 2009 that seemed relatively minor ($700 damage to his car) but that had left him with a neck and back pain to such an extent that he had been unable to work. He had had a variety of treatment with no evidence of any marked improvement. Was asked directly as to whether or not he or any members of his family had made any WorkCover, transport accident or personal injury claims and had answered “no, no and no.”
I was asked to provide a supplementary report for George and sent a bundle of report, some going back to 1990. It turns out that this “hard-working man who had been in virtually continuous employment” had had a back injury at work in 1990, was off work for eight years during which time he received WorkCover payments and then a disability support pension. He had three previous transport accident claims. His wife was not working because of a work-related back injury and was receiving WorkCover payments. His two brothers similarly had work-related back problems and were receiving WorkCover payments.
On the face of it, to say the last, there was a disparity between the information he provided and the information in the documentation. How to proceed? Do I write a supplementary report based on this documentation or do I see him again?
When there is any question about credibility you have to see the claimant. People always get things wrong, it is fascinating to interview different members of a family about the same event because you find that they all have a different version of what happened, the Rashomon effect, a term that has been used by scholars, journalists and film critics to refer to contradictory interpretations of the same events by different persons, a problem that arises in the process of uncovering truth. It is named for Akira Kurosawa‘s film Rashomon, in which a crime witnessed by four individuals is described in four mutually contradictory ways. As a barrister friend of mine told me “you can never rely on eyewitnesses”.
I reckon that in 95% of my interviews people get facts wrong, sometimes important facts that have no bearing on their claim and at other times facts that may be relevant. On a number of occasions when I have re-interviewed somebody about some missing information their response has been “well I didn’t think it was relevant”. In many cases they are right and of course we are always dealing with people who are having their privacy invaded and know that they have no confidentiality.
I do a bit of a juggling act if I recognise that people are reluctant to give me some information. I will say something like “look, tell me in general terms what this is about. If I don’t think it’s relevant I won’t write it down, but if I do think it relevant I will use a form of words that you are comfortable with.” I saw Harry, a man in his early 30s from a strict religious background, for a transport accident on behalf of his solicitor who was also his father-in-law. Harry told me that he had used recreational drugs over the years but not recently. He suddenly realised what he had said and asked “will this go in the report?” I said that it would. He panicked because he realised his father-in-law, who was strictly opposed to drug use and very close to his wife would find out about this part of his life. I told him that I would ask him about it in more detail and that if I did not think it was relevant I would not only not put it in my report but I would not have it in my written notes. He told me about some relatively minor drug use between the ages of 18 and 23. I ostentatiously tore up the sheet of paper I had been writing on having first shown to him and ripped it into small pieces for effect and shoved it in the bin. He was reassured and the interview continued. By the way, there was no mention in any of the other documentation about his drug use. If it had been mentioned I would have been obliged to make some comment about it in my report.
On another occasion I struggled with the dilemma of whether or not to record in my report that Peter, a man in his early 40s, had a mother who had died of AIDS. His mother had been infected by her partner. This was information that was closely held within the family circle. This information was also not in any of the other documentation. His mother had died some 15 years previously. I did not consider his mother’s death was relevant to his work injury and its aftermath. I recorded only that his mother had died of an infection.
What have these stories to do with my dilemma with George? The point I’m making is that other reports can appeared damning but they can also be wrong. If you assume that the information in the report you receive are accurate think again. It is astonishing how many errors are in reports, some trivial but also some important. The more accurate your report is about the small details the more credible it is to do with the important issues and your opinion!
So, I saw George again. At this point it became an anticlimax. He could not disagree about the previous work injury, his family history of work injuries, he remained evasive about whether or not he was working at the time of the accident. I asked to see his CentreLink benefit card and found that he had been granted a disability support pension in 2004. He reluctantly admitted that he had not worked since then. I always ask to see the CentreLink card because the date will often tell you when the benefits started although the benefit may be a New Start Allowance initially and later becomes a disability support pension.
In my report I made it clear that because of concerns about credibility I was not able to form an opinion about whether or not he had a diagnosable psychiatric disorder. I did not say he was a liar, a malingerer, a psychopath or that there appeared to be a family culture of rorting the system. Avoid using any of those loaded terms. It’s quite sufficient to indicate that your opinion has to be based on the accuracy of the information that you have been provided and if that proves to be incorrect you cannot form an opinion.
The second situation was with Angelo, a man I saw for his solicitor who had a WorkCover claim as a result of a road rage incident in which he claimed he had been assaulted and had been left with mental and physical injuries. I had read the documentation with an increasing sense of gloom. He came from a grossly dysfunctional family with a violent alcoholic father and an emotionally absent mother. He had been in and out of prison serving at least 10 years in all. His work record was very patchy but he had become a union organiser. At the time of the alleged injury he was working as a van driver and had become involved in an argument about a vacant parking spot. There had been some pushing and shoving and he had tripped backwards over the curb landing heavily on his back. He was claiming post traumatic stress disorder and a back injury. One thing in his favour was that he was the custodial parent to his two children.
He arrived at the interview 25 minutes late. There was a minor breakdown in communications with my office manager and I did not realise he had arrived for another five minutes. Normally when people arrived at late I make another appointment but on this occasion, because of my own stuff up I reluctantly decided to see him.
He looked like Bruce Willis with the leather jacket, shaven head, designer stubble and wraparound mirrored sunglasses. I went through my usual spiel about confidentiality et cetera. He was the sort of man who tried to physically dominate and his body language reflected that. He sat tall with an expressionless face and spoke in a monotone. I realised there was trouble when I asked him about the ages of his children. The few people who have been truly obnoxious to interview always seem to cavil when requested to provide family information but we had negotiated his parents and siblings, and indeed his ex-wife, relatively comfortably. I had asked him the birthdate of his daughter. I always ask people for the birthdate of the children because it gives me some idea of their closeness to their children and their long-term memory but also it provides me with a chronological pointer. It means I can say something like “so how old was your son when you and your wife separated?”
He told me that his elder child, a son was born on 13 April 1998 and was 14 years old. Without thinking I said “no, he must be 15 years old because he was born in 1998 and it is now 2013.” He said with menace, “he’s 14!!” I was a bit slow off the mark and said well he must have been born in 1999! He was insistent that he was born in 1998. I then realised this was a big issue for him, I have no idea why. Maybe he thought I was saying he was dumb! I just don’t know. He had another son and I remember thinking “Will I or won’t I”. I decided to go for it. “So when was your younger son born?” He told me his younger son was born in February 2002 and that he was 10 years old. I can remember hesitating, do I leave this issue because it seemed so fraught for him or do I mildly challenge him. You must remember that by this stage I was feeling a little pissed off myself. I found this guy menacing with an undercurrent of deep hostility (that I knew was nothing to do with me). Considering that I was seeing him for his solicitor he seemed, at best, very unhappy about seeing me.
In the end my need for accuracy won out and I found myself saying “wellll, he must be 11!”
Bruce II exploded in rage. He abused me, swearing and telling me he was sick of all my f…ing questions. I told him to control his behaviour or he would have to leave. He chose to leave and slammed his way out of the office. He left a final legacy, he spat on the door leading to the lift.
I must admit I was not unhappy about him going. I anticipated a very long and difficult interview. I anticipated I would have to be asking him about his convictions, his record of aggressive behaviour and so forth.
The question was then what to do to clean up the mess and not just the spit? I telephoned his solicitor immediately and explained the situation. The response was apologetic. I then wrote a report indicating all the information with which I’d been provided and stating what had happened during the interview and made very sure that I did not use any psychiatric terms in describing his behaviour (see the consequences of not doing so). I wrote that I had not seen him long enough to form an opinion. I felt surprisingly calm. I was grateful that he had not smashed anything in the office or on his way out.
In retrospect I should have approached him with more care. I should have explained that because he was 25 minutes late it was unlikely that I would be able to complete the interview and would have to organise an additional time. I should also have spelled out in detail what I would be asking him during the course of the interview. All this is in the documentation sent to him by his solicitor that had been provided by me but who knows whether or not he read it. If I knew that I had given myself extra time I may have been less pressured and have resisted pushing him. If I had been more “with it” I would have picked up his irritability and confronted it directly. I would have said “you seem irritable, can you tell me what that’s about?” He may or may not have responded but at least I would have had more control of the situation-I think.
It is a continuing struggle to make sure that people who experience a psychological injury are treated in a similar way to those who have a physical injury. The battle has already been lost in New Zealand to some extent. It was salutary reading the report of the Inquiry into the Operation of Queensland’s Workers’ Compensation Scheme published in May 2013. I have posted an edited version of this Report in “publications”. The Inquiry Report describes in some detail two particular issues, bullying and people making “stress claims” when they are faced with managerial action that they do not like. The paper is worth reading to see what the various participants have submitted. In particular there is a recommendation that the definition of psychological injuries be amended to include two types of psychological injuries identified as category A and B, the Committee is effectively recommending that criterion A for post traumatic stress disorder be category A and the rest be category B requiring a high level of proof for acceptance of such a claim! (see recommendation 11).
I have also extracted from this Report a table describing the Exclusionary Provisions for Psychological Injuries in the Commonwealth, States and Territories and New Zealand, WorkSafe Australia 2012
The recommendations are as follows:
Recommendation 10
The Committee recommends that psychological injuries be included under separate provisions within
the legislation.
Recommendation 11
The Committee recommends that the definition of psychological injuries be amended to include the
two types of psychological injury identified as category A and B above in section 4.5.
Section 4.5 The Committee considers that psychological injuries can be defined as two types:
A. Where a psychological injury is attested to by medical evidence and it results from an event
or series of events that deliver such significant trauma that it would reasonably be expected
it would impact adversely in the short, medium and long term on a significant proportion or
the majority of the population were they exposed to such significant events.
Examples of such events would include serious work related assault occasioning bodily harm
and in particular residual physical disability. Other events, that if supported by medical
evidence of ongoing psychological injury, may include people exposed to severe physical
threat such as hold-up, work place invasion such as robberies or where workers are exposed
to victims of road and rail incidents in the course of their employment.
B. All claims other than those identified above. This would include claims such as workplace
harassment and those types of claims where it is anticipated it would only produce a lasting
psychological injury to people whose pre-existing psyche is vulnerable. This type of claim is
more difficult to assess because the events around them are likely to be influenced by nonwork
psychological stresses, pre-existing psychological issues such as substance abuse, preexisting
depression, personality disorder, bipolar disorder etc.
The Committee considers that the level of proof required for acceptance of a claim under
the second type of claim should be quite high.
Recommendation 12
The Committee recommends that the current exclusions for reasonable management action be
removed and be replaced with specific exceptions for normal work place practices such as:
a) where action is taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
provided that action is taken in a reasonable way;
b) where a decision is made not to award or provide promotion, reclassification or transfer of, or
leave of absence or benefit in connection with, the worker’s employment provided the decision is
made in a reasonable way;
c) action by the Authority or an insurer in connection with the worker’s application for
compensation.
AND the definition be amended to be ‘the major significant contributing factor’ rather than the
current ‘a major significant contributing factor’ for Category B type psychological injury claims.
Recommendation 13
The Committee recommends that the Queensland Mental Health Commission be directed to
undertake a research study regarding the impact of the legislative changes if they are adopted and
that this study must directly inform the next review of the Workers’ Compensation Act.
Recommendation 14
The Committee recommends that the Attorney-General should initiate a review of the Work Health
and Safety Act 2011 with a view to considering whether recompense to victims of workplace bullying
could be made through mechanisms in that Act rather than through the Workers’ Compensation
Scheme.
Recommendation 23
The Committee recommends that a psychological specialty medical assessment tribunal be
included on the list of specialty medical assessment tribunals
An example of professional non-misconduct and vexatious litigation and misplaced indignation.
This is the case of: the Medical Board of Australia and McCarthy [2012] WASAT 210
In this case The Medical Board of Australia alleged that a consultant psychiatrist, Dr McCarthy, was guilty of gross carelessness by making three incorrect statements in a medical report.
The medical report was prepared at the request of the patient’s former employer for use in legal proceedings between it and the patient.
The Tribunal assessed the statements in their context, reviewed the relevant evidence in relation to each statement, and concluded that the Board’s allegations were not established. The application was dismissed.
A footnote stated “Practitioner’s application for costs will be heard in January 2013”. Dr McCarthy was represented by senior counsel. (Note that Dr McCarthy is identified although completely vindicated but the vexatious litigant retains his anonymity.)
The report refers to a Medical Board hearing regarding, what appears to be at face value, a frivolous complaint leading to a total waste of time and money.
Dr McCarthy, a psychiatrist wrote a report about a KR, a workers compensation claimant. The claimant objected to 3 phrases used in the report. The Medical Board then proceeded to a hearing alleging that the three phrases were false and that by making the statements Dr McCarthy was grossly careless. Two senior counsel were appointed and the matter was heard by a board including a judge.
It is particularly noteworthy that there was no complaint as to the ultimate diagnosis reached by Dr McCarthy.
It is difficult to conceive of any reason for proceeding with this by the complainant other than causing trouble for Dr McCarthy. It is difficult to understand why the Medical Board would go to such lengths to pursue it. There must be some sort of circuit breaker to head off these type of complaints.
The judge reprimanded Dr McCarthy for his indignant letter to the Board when he was informed of the complaints. He described KR’s complaint as “vexatious, malicious, inappropriate and incorrect“. He wrote “This man is currently behaving as he behaved on a number of fronts for many years and I don’t imagine any response would reassure him.”
It is difficult not to agree with Dr McCarthy no matter how inappropriate his language.
Furthermore the response of the judge may strike you as sanctimonious:
No matter how unjustified a complaint might be thought to be, members of the public are entitled to bring theirgrievances to the appropriate authority, and to have them investigated. They are entitled to be treated with respect.
When claimants make totally unfounded and ultimately damaging allegations regarding one’s professional competence out of what appears to be a sense of spite? One may give the appearance of respect but I would imagine most of us would feel anger and contempt although it was not wise to not denigrate the claimant no matter what the provocation.
One wonders what the emotional and physical toll was on Dr McCarthy. I wrote a paper about this some years ago. The paper was entitled “It’s not Fair!“and was about morbidity amongst healthcare providers following complaints.
The only satisfaction is that the good guy one, but at what a cost.
The Judgment (edited).
Dr Peter McCarthy is a consultant psychiatrist with many years experience. In 2006, he undertook a medical review of KR. The review was undertaken on instructions from KR’s former employer, Australia Post, for the purpose of workers compensation proceedings brought by KR against Australia Post in the Administrative Appeals Tribunal.
Dr McCarthy reviewed KR on 22 September 2006. He subsequently provided a report, dated 14 December 2006, to Australia Post. The Medical Board of Australia (Board) contends that three statements contained in that report were false, and that by making those statements, Dr McCarthy was grossly careless. The alleged inaccuracies are said to be grossly careless because of the significance of the statements to KR’s claim, and to his entitlement to receive workers compensation payments.
Two broad questions arise in relation to each of the allegedly incorrect statements.
1.The first question is whether the statement is inconsistent with what KR told Dr McCarthy during the consultation on 22 September 2006.
2.In that event, the question then arises as to whether the making of the incorrect statement amounts to gross carelessness for the purposes of s 13(1)(c) of the Medical Act 1894 (WA) (which was the applicable disciplinary provision applying to medical practitioners at the relevant time).
Dr McCarthy’s report was 10 pages in length. The first seven pages, in which all three of the allegedly incorrect statements are found, recited the history obtained by Dr McCarthy and concluded with his opinion. The balance of the report was given over to answering specific questions which had been asked of Dr McCarthy by Australia Post. In these proceedings, there is no complaint as to the ultimate diagnosis reached by Dr McCarthy.
The first ‘incorrect’ statement
Dr Mc Carthy wrote ‘[KR] admitted that his depression settled somewhat in 1998.’
The first thing that can be said about the first allegedly incorrect statement is that it comprises merely the first clause in a much longer sentence. The full sentence reads as follows:
[KR] admitted that his depression settled somewhat in 1998, but maintained that he continued to have fluctuating symptoms of anxiety and depression for the 6 years of his business, although it appeared his mood disorder was
not sufficient to motivate him to continue specialist treatment.
Two paragraphs earlier in the report, the following is said:
In 1998 he bought a bob cat and a truck and began working on his own business in April 1998 at house sites. He continued seeing Dr Fred Ng, Psychiatrist, who in his letter of 5 January 1998 reported that [KR] was making good progress on his anti-depressant medication Zoloft (sertraline) at the high but manageable dose of 225 mgs per day. Dr Fred Ng described his Major Depressive disorder as being in remission, i.e. having settled in January, although in his letter of 17 February 1998 he indicated that [KR] had become demoralised again due to a lack of work. [KR] had ceased seeing his Clinical Psychologist Graham Guest and thus the sychiatrist Dr Fred Ng indicated he adopted a more psychotherapeutic role in [KR’s] management, while [KR] remained on his anti-depressant medication. In June 1998 [KR’s] depression was in remission, and had remained in remission. It appears the opportunity to purchase his own bob cat and truck and to start his own business, had led to a settling of his psychiatric symptoms. His psychiatrist noted that [KR’s] morale and self-confidence, and his traumas from his difficulties at Australia Post ‘certainly continued to recede into the background’. He remained on his anti-depressant medication, his depression remained in remission, and he ceased seeing his psychiatrist sometime in 1998.
KR was cross-examined about his condition in 1998. When pressed, he reluctantly accepted that he had experienced some improvement as a result of his medication in 1998. He said that if his condition was 50% in 1997, it would have been 60% in 1998, and that he was ‘managing things better with the help of the drugs’.
As his report noted, Dr McCarthy had been sent a substantial number of earlier medical reports, including the reports of Dr Frederick Ng, KR’s treating psychiatrist. In cross-examination, KR ultimately accepted that, if the statement had said that ‘his depression settled somewhat in 1998 as a result of taking Zoloft’, then he would agree with that statement.
That concession is sufficient to dispose of the first complaint.
The effect of the statement is a proposition which KR accepts as accurate.
The Board also noted Dr Ng’s report of 8 April 1998 stated ‘I do believe that the major depression remains in remission due to the Zoloft’. Two months later, on 5 June 1998, Dr Ng reported a significant improvement in KR’s psychological state which he said ‘comes about as a result of feeling back in control of his destiny, and of being able to perhaps earn a living on his own accord’. He described KR’s depression as ‘remaining in remission’. Later that month, on 22 June 1998, Dr Ng described the depressive order as ‘currently in remission’ and said that he had responded exceedingly well to treatment so that his major depression ‘is now clearly in remission, and he is asymptomatic’. He described the prognosis as good.
Thus, the comment ‘his depression settled somewhat in 1998’ appears almost an understatement when measured against the contents of Dr Ng’s reports, which Dr McCarthy had before him and read prior to seeing KR.
The grounds for complaint seems to be that KR ‘did not admit or say that his depression settled somewhat in 1998‘ rather than the rather compelling support for Dr McCarthy’s statement from Dr Ng.
This invites consideration of what KR said at the consultation in September 2006. Dr McCarthy’s notes of the consultation show that events during 1997 and 1998 were discussed. We did not find KR’s evidence particularly reliable.His reluctance to accept the proposition, strongly supported by Dr Ng’s contemporaneous reports, that his symptoms had improved significantly in 1998 showed a tendency to recollect events in a way that supported his complaint against Dr McCarthy.
The second statement
Dr McCarthy wrote ‘He was somewhat vague whether he remained on medication, this was written in reference to the years between 1998 and 2004. The grounds of complaint was that [KR] told [Dr McCarthy) words to the effect that:
(i) between April [1998] and February 2004, he had worked as a self employed Bobcat driver;
(ii) whilst working [as] a self employed Bobcat driver, he had made approximately twelve applications for employment and four applications for income protection and workers cover and he had stopped taking Zoloft every time he completed an Application because he thought that each Application was more likely to succeed if he could manage without taking Zoloft;
(iv) he had resumed taking Zoloft within approximately three days of completing each Application;
(v) he had consulted with Dr Ng in October 2003 after which time, his prescription of Zoloft was increased to 275 mg daily;
(vi) with the exception of the periods of time when he stopped taking Zoloft, he had regularly taken Zoloft between 1998 and 2004 in varying doses of between 225 mg and 275 mg daily; and
(vii) he had remained depressed between 1998 and 2004.
In his written statement of evidence, KR said that he used words to the effect of those set out above. When questioned, KR he agreed that the reason he stopped taking Zoloft when he completed an application for employment or income protection insurance was that he wanted to be able deny that he was currently taking any medication. He said that the statement in his written evidence that he did that ‘every time’ he completed an application was a mistake, and that he only did that sometimes and had done so on the advice of a doctor although he knew that it was misleading. He said sometimes he would forget to take his medication, and sometimes he would go off it because he could not be bothered. He acknowledged that he told Dr McCarthy that there were times when he went off his medication.
Having heard KR’s evidence as to the frequency and duration of his periods off medication for various reasons, we have no clear picture of the extent to which he took himself off medication during that period. We thought Dr McCarthy’s comment that KR was ‘somewhat vague’ was correct.
KR might have been reluctant to discuss his behaviour that he knew was misleading. He was uncomfortable discussing that aspect of his evidence under questioning from counsel. We understand that Dr McCarthy’s comment expressed a conclusion and were not the actual words used.
The third statement
Dr McCarthy wrote ‘He has now ceased his Zoloft (sertraline) although it is not clear when and his current medication is …’. KR gave evidence that he said the words to the effect alleged by the Board. Dr McCarthy had no independent recollection of the discussion and relied on his notes to support the statement made in his report. Dr McCarthy was cross-examined and accepted the possibility that he may have misheard KR, although only on the basis that ‘anything is possible’.
Counsel for both parties accepted, and we agree, that the task for the Tribunal is not simply a question of deciding whose evidence is to be preferred. Both accepted that the Tribunal should be guided by the observations of Miller J in Hewett v Medical Board of Western Australia [2004] WASCA 170 at [119] – [121] where his Honour said:
It may be tempting in disciplinary proceedings for a tribunal to look to see who is telling the truth and who is lying, but there is a danger in following this path. It overlooks the fact that the ultimate question for a tribunal in these circumstances is whether the tribunal of fact is persuaded on the balance of probability that the allegations contained within the Notice of Inquiry have been made out.
In Briginshaw v Briginshaw (supra), Dixon J (at 362 – 363) formulated the appropriate reasoning processes that are required of a tribunal of fact sitting as the Board was in this case. His Honour said:
‘… Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of the kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency … It is often said that such an issue as fraud must be proved ‘clearly’, ‘unequivocally’, ‘strictly’ or ‘with certainty’ … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil case may, not must, be based on a preponderance of probability.
It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues … but, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.’
This well-known and oft-cited passage stresses the need for the Board in this case to have approached its task by considering carefully as the primary issue whether it was satisfied to the requisite standard that the complaints had been made out. There is a danger that in looking first to see who was telling the truth and who was lying, the Board may have obscured what was the essence of its inquiry.
In this case, quite properly, neither counsel suggested that any of the witnesses were ‘telling lies’. The question remains, however, whether the Tribunal is satisfied to the requisite standard that the complaints are made out.
We are satisfied that KR did somehow convey to Dr McCarthy that, at the time of the consultation, he was not taking Zoloft.
As we have already noted, we have concerns as to the reliability of the evidence of both KR and JR (his wife) so that its weight is reduced to the extent that we are unable to be satisfied to the requisite standard that the report was false. It follows that the third complaint is not made out.
Dr McCarthy’s response to the Medical Board
When KR’s complaints were first referred to Dr McCarthy, he responded by letter to the Board. In that letter he described KR’s complaints as ‘vexatious, malicious, inappropriate and incorrect’. He said ‘This man is currently behaving as he behaved on a number of fronts for many years and I don’t imagine any response would reassure him’.
Dr McCarthy was cross-examined on those statements and it was put to him that they demonstrated an antipathy to KR which could only have emerged from his consultation with KR in September 2006, and provided a context against which the allegedly incorrect statements had been made Dr McCarthy denied that proposition.
We do not consider that those statements in Dr McCarthy’s letter of response to the Board, unfortunate as they are, should lead us to the inference suggested by counsel for the Board. The comments can more easily be construed as demonstrating a sense of indignation on Dr McCarthy’s part at the making of a complaint to his professional regulatory authority. Having said that, we would observe that the statements made by Dr McCarthy in his response were particularly unfortunate and ill-advised. No matter how unjustified a complaint might be thought to be, members of the public are entitled to bring their grievances to the appropriate authority, and to have them investigated. They are entitled to be treated with respect. Inflammatory responses respect neither the complainant nor the process. It is especially surprising to see comments of that nature made by a psychiatrist, albeit not the treating psychiatrist, in relation to a patient who has been treated over an extensive period for significant depression.
Conclusion
For the above reasons we find that the complaints of gross carelessness are not made out and the application should be dismissed. At the close of the hearing, counsel for Dr McCarthy foreshadowed an application for costs. The matter will be listed for directions on the question of costs.
Orders
1. The application is dismissed
2. The question of costs is listed for directions at 10 am on
13 November 2012.
I certify that this and the preceding [40] paragraphs comprise the reasons
for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J A C, PRESIDENT
A sample of my collection of “great horrible comments”
A 43-year-old man saw a counsellor with his wife following the death of his seven-year-old daughter who was run over in front of him. They saw the counsellor two weeks after the accident. The counsellor said “good, let’s see what we can do to get early closure!”
A woman whose 12-year-old daughter was killed in a transport accident was told by her mother “good, now you know she won’t be raped when she gets older!”.
A middle-aged woman complaining about her marriage to her mother was told by her mother “I remember you complaining about the same things before you got married. I remember, even then, thinking “who are you to be so choosy.”
A middle-aged man who’s wife had died two weeks previously after 12 months of horrendous treatment for breast cancer was asked by some friends “why don’t come back dancing, you’ll feel much better.”
Two adolescent children of a woman were killed in an accident involving four other teenage deaths in a country town. The driver was convicted of careless driving. The woman was approached by a stranger in a supermarket who said “you’ll be pleased now that you have closure.”
I would be interested to hear any examples you may have.
Do’s
1. Do read the referral letter and accompanying documentation before you see the claimant.
2. Do get a consent form signed (see one in Resources).
3. Do a mental status examination
4. Do complete the report as soon as possible.
5. Do come to an opinion.
Don’ts
1. Don’t tolerate rudeness.
2. Don’t readjust your schedule for a court appearance until you are guaranteed payment.
3. Don’t look at surveillance material in the absence of the claimant.
4. Don’t tell the claimant your opinion.
5. Don’t write what you think the referral party wants to hear.
The highlights for me were Michael Linden’s talk on embitterement, Kimberly Dean’s talk on violence and mental illness, the discussions about developing a curriculum with regard to forensic psychiatry, especially in the civil area, and of course my talk on “bizarro world II“, nobody asked me what was bizarro world I, I had a ready reply – DSM5.
I was especially interested in Michael’s talk because he spoke about a group of people who seem to have been ignored both by DSM in its various iterations and by ICD 10 and 11. That is people who seem to have been coping well and for a variety of reasons experience a breakdown in their capacity for coping that may never significantly improve and who not do well with the usual treatments including psychotherapy, CBT, and medication. Michael had done impressive research and had focused on an aspect that I have seen as insignificant but I now recognise the importance of embitterment. I spoke to Michael about a book I wrote in 1989 called “Falling Apart, Living with Stress Breakdown” (7,257,841 on the list of Amazon bestsellers). Much of my clinical work has been with people in this group.
Kimberly Dean’s lecture was a delight. It was a deeply academic talk exploring large data sets and examining how different ways of looking at these datasets can produce totally different results. For example one study showed that when the confounding influence of alcohol were removed there is no difference in the level of violence between the general population and those with mental illness. Some years later exactly the same data was reanalysed with the opposite outcome!
It made me conscious, yet again, how seduced we are by numbers.
The other piece of research she spoke about was seeing what happened if intensive interventions were done with people with psychosis who were at risk of violence. The surprising thing was that it made no difference long-term. Perhaps that is a good thing for mental health services.
It was particularly interesting to have a frank and full discussion with the subcommittee developing criteria for forensic trainees. I thought they had done an impressive job, despite my previous quibbles and handled the adverse comments about the lack of any civil training effectively. In essence, the complaints were that there was insufficient emphasis on doing civil forensic work and that most of the people doing civil forensic work did not necessarily come from the criminal forensic stream and there was no training envisaged for them. These matters are being considered.
Apart from that the weather was great, the food, though expensive, was good and I spent a week travelling to a small aboriginal community at Kalkaringi, 750 km south-west of Darwin, that was a real eye-opener. A terrific indigenous community but plagued by the usual problems, lack of employment, lack of school attendance and lack of purposefulness.
DSM 5 was published in May 2013. We all need to be aware of those areas that have been changed and those that remain the same as in DSM IV TR. There is a detailed analysis of DSM5 on the website. But also see Nick Haslam’s article).
The general changes are that the multi axial system has been dropped, I believe this is a recognition that it was not useful and that it was rarely used in clinical practice although the concept it conveyed of looking at the mental disorder, personality issues, other medical issues, psychosocial issues remains a part of most clinicians’ diagnostic formulation.
The Global Assessment of Function scale has been dropped. It is interesting that the authors of AMA 6 chose to include the GAF and now that it has been removed it has even less credibility as does chapter 14 in AMA 6.
The chapter on Schizophrenia Spectrum and Other Psychotic Disorders has some minor changes with the addition that at least one of the Criterion A symptoms must be delusions, hallucinations, or disorganised speech. That DSM IV TR subtypes were eliminated. There have been changes to the conceptualisation of Bipolar 1 Disorder and Bipolar 2 Disorder as they now include both changes in mood and changes in activity or energy. The major change with regard to depressive disorders, apart from some new minor diagnoses, is the name change from dysthymia to persistent depressive disorder. There have been changes in relating bereavement and major depressive episodes.
Anxiety disorders include significant changes including separate chapters for Obsessive-Compulsive and Related Disorders and Trauma and Stressor Related Disorders. Panic disorder and agoraphobia are now regarded as discrete entities and if they occur together both diagnoses need to be made.
A number of comparatively rare new disorders have been encompassed under the concept of Obsessive-Compulsive and Related Disorders. The specifier has been modified to allow for a range between those who have good insight and those who have no insight into their behaviour.
Trauma and Stressor Related Disorders including Acute Stress Disorder and Post Traumatic Stress Disorder has had significant changes, the Criterion A requirement involving a person’s response to the trauma has been eliminated and the notion of repeated or extreme exposure to trauma such as that expressed by first responders is acknowledged. The only other major change has been to recognise negative mood and irritable behaviour and angry outbursts. Adjustment disorders have been appropriately bought into the category of stress-related disorders. The authors of DSM 5 claim that these disorders have been “reconceptualised as a mixed array of stress-response syndromes that occur after exposure to a distressing event rather than as a residual category for individuals who exhibit clinically significant distress but whose symptoms do not met the criteria for or more discrete disorder (in other words a wastebasket diagnosis). However the diagnostic criteria are identical so no real change there.
The authors have recognised that although the concept of Pain Disorder as in DSM IV TR was conceptually neat it was not based on any scientific evidence. The authors state that pain is almost always associated with psychological factors and recognise that some individuals with chronic pain have somatic symptom disorder, with predominant pain. For others an appropriate diagnosis may be psychological factors affecting other medical conditions or an adjustment disorder.
I was impressed with the DSM 5 and thought that a lot of the criticism was a great deal of nonsense. Critics appear to have picked on rare diagnoses to beat the authors with implying they are trying to medicalise normal behaviour. As a consultant psychiatrist the changes relevant to my areas seem sensible and understandable.
I was hot tubbing again on Friday. I think this is my fifth time in the hot tub. The first, a total fiasco, was at the Administrative Appeals Tribunal. There were four psychiatrists who turned up, one by telephone from another state. We were told that we would each give evidence and we would then have an opportunity to cross-examine each other. The first psychiatrist, a distinguished professor requested leave as he had more important things to do and was allowed to leave. The next, a psychiatrist from the country then gave evidence and again requested leave on the basis that she had a clinic to manage in her country town and she was also allowed to leave. Neither could be cross-examined. I was then called up and protested against the lack of opportunity to deal with the evidence of the first to psychiatrists. I gave my evidence and was then vigourously cross-examined by the interstate psychiatrist. I again protested against what seemed to me manifest unfairness in being the only one cross-examined as the interstate psychiatrist then gave his evidence but then had to go elsewhere. The chair seem to acknowledge this but nevertheless the farce continued. I was left feeling very disillusioned. The second time involved another AAT hearing. This time the other psychiatrist was a young, very knowledgeable and skilled witness who was impressive. We had an interesting dialogue discussing the issues we agreed with and the issues where we differed. It was a very satisfying experience. The tribunal seem to appreciate it. The third was a teleconference with a Sydney psychiatrist, thought to be something of a gun for hire who wanted to debate the issues over the phone. I decided to take charge of the dialogue and made it clear that we were not there to debate anything. We were try to sort out those areas where we agreed and those where we disagreed. The matter was dispatched within about half an hour, I thought quite satisfactorily. Subsequently I wrote a letter, sending a draft to the other psychiatrist who agreed with it and we jointly signed the draft and it was dispatched to the judge.
On this occasion I was given a subpoena to appear in the Sydney Supreme Court. I had a brief discussion with the barrister who gave me some gratuitous advice. He urged me not to fold under pressure, thanks a lot for that advice, I’ve been a witness before. This was a very large courtroom with a very long witness table that comfortably accommodated the three of us. Two of us had seen the claimant for his solicitor and the other had seen the claimant on two occasions for the defendant. The judge started off by asking each of us to give our opinion about the diagnosis and the reasons for that opinion. I was surprised that the psychiatrist who appeared on behalf of the defendant made it clear at the start that all forensic psychiatrist were basically guns for hire and I thought his evidence went downhill from there. All of us know each other so at the morning tea break we shared a cup of coffee and later shared lunch. Matters heated up in the afternoon when all of us were cross-examined, not least by the judge. All of us had made mistakes in our reports that were brought out during the course of the day. One of us took his mistakes on the chin and did not attempt to dissemble or argue. I thought that went well. The other did the reverse and got deeper and deeper into doodoo. He was also challenged because he had seen this man on two occasions with a 13 year interval and said he was unchanged but despite that had changed his diagnosis. He found it very difficult to deal with the challenge that evoked. I was pleased that we were able to remain friendly and there were no personalities bought into our confrontations with each other. I was left feeling satisfied that all of us had had an adequate opportunity to express our thoughts and opinions and to deal with challenges that arose face-to-face rather than in the usual vacuum one experiences as a solitary witness. The experience confirms to me that to be a good witness one has to have a number of qualities including a comprehensive, well argued report and opinion, a readiness to deal with whatever facts are presented, or assumptions. A willingness to actively defend your opinion without being an advocate for the claimant or the defendant and a professional attitude towards the inevitable disputes that occur. As always there were things for me to learn.
The South Australian government has changed the motor accidents scheme that was compulsory third party and is now more a no fault scheme. As part of the changes there will be payment of impairment benefits. It has been decided to use the GEPIC rather than the PIRS! Concern was expressed that the PIRS was simplistic, not focused on symptoms of impaired mental health and was inequitable. A training program will be developed. I have provided a link to the ISCRR, I have mentioned this organisation in a previous post. This organisation is a combined initiative of the Victorian TAC and WorkSafe and is funded to do research and accident and work issues. In this issue there is an article about workplace prevention of mental health problems. It is worth a read.
Travelling through Europe over the last month was physically exhausting but mentally refreshing. In particular I enjoyed the Hundertwasser Museum in Vienna, an extraordinary architect, well-known in New Zealand for designing the best public toilet I have ever seen. The other highlight was wonderful untouched art nouveau building in Prague called, boringly, the municipal house that has every art nouveau details you could imagine and is to die for. Fortunately it contains a beautiful cafe and restaurant and a large auditorium in which we listen to Mozart and Strauss.
Now back to work! One of the things that greeted me when I returned was a form describing requirements for psychiatric reports by Victorian WorkCover and the Transport Accident Commission for quality assurance purposes. I have enclosed a link to this form. When I first looked through this I could see no major problems but I had occasion to look at it recently and became much more concerned. Items 1-4 seem unexceptional. There appear to be no items 5, 6, 7, or 8.
Problems are with items 9 and 10.
Item 9, The summary formulation.
Item 9.4 “including evidence to support or change the plan, based on best practice ( what is best practice with regard to some of the conditions we see such as chronic pain syndrome, adjustment disorder, I could go on.); item 9.7 strategy to aid or improve safe return to work (in most claims for psychological injury there has usually been a breakdown in the relationship with the employer, how is this relevant in that context.
You are also assessed as to whether or not you have made a recommendation to provide the report to the treating health practitioner. I do not understand why that is relevant. If this is a question that has been specifically asked then you will respond to it but why should you otherwise?
(Ironically there is no question asked referring to the examiner’s views about other opinions, this is a usual part of what I do.)
Unless these questions are specifically asked they will not be answered but this summary formulation seems to indicate that they should always be answered whether or not they had been asked.
The other issue is with 10. RESPONSES TO SPECIFIC QUESTIONS. This states “To ensure the report is a stand alone document, each question should be retyped in full as detailed in the referral request, and comprehensively addressed”.
For years we have been asking the claims agents to send their questions in an electronic form so they do not need to be retyped, this is particularly so because each claims agent asks different questions. To retype all these questions is a waste of time, this now codifies that the claims agents do not need to go to the trouble of sending out these questions in an electronic format.
I am a member of the Victorian AMA VW A/TAC committee and we have been asking them for years to do this. We have also been asking that they cut back the number of questions. There were about 32 questions that were being asked. They agreed to this but what they have done is asked a question is with four parts to each question keeping the original 32.
I have discussed by concerns with the Victorian branch of the AMA and they will write a response along the lines I have suggested.
I was struck by the program for the upcoming May Congress of the College. There is a section run by the Faculty of forensic psychiatry that appears to be exclusively related to the psychiatry and psychology of offenders, there seems to be nothing for those of us who do civil assessments. There have been discussions about the curriculum for the faculty and it appears that civil assessment will be regarded as an optional extra. Presumably an optional extras for those who have done the offender based course but what about most of us who got into civil assessments midway through our career from doing clinical psychiatry and have no interest in doing offender based psychiatry. I have always felt that the Faculty of Forensic Psychiatry is a real hybrid with an unknown number doing the civil work who seem to be pretty much disregarded and the other section dealing with offender based psychiatry where there are academic chairs, academic journals and so forth with institutions and a range of options for trainees. The options for trainees in the civil area are a didactic course and some mentoring by those of us who do the work, hardly satisfactory. I had hoped that the Institute for Safety, Rehabilitation Research and Compensation (the ISRRC) funded by the Victorian WorkCover Authority and the Victorian Transport Accident Commission would have some focus on our area but my expectations have not been met.
A number of people have asked me to set up a question and answer forum to see if we can thrash out some of the more complicated issues. For example I have seen two claimant recently who are alleging that prescribed medication caused significant side-effects and damage, both claiming economic damage, one who alleges the medication made him a compulsive gambler and the other alleging that the medication made her a zombie and she had to sell her profitable business at a loss. Both did not manifest any significant psychiatric disorder when assessed. Do they have a claim? The man who was a compulsive gambler had been a compulsive gambler previously and despite knowing about this unusual side effect for at least 12 months continued taking the medication. A further problem arises when one considers the issue of not counting for secondary psychiatric impairment. Is a side-effect from a medication a physical injury or consequential upon a physical injury? If so, it does not count. Bullying, as we know, seems to have become today’s equivalent of RSI. Is it bullying when a manager tells a poorly performing worker “the time so trying is passed, it’s time to start performing!”
Like most things worth doing, assessing people and writing reports can never be perfect and I am always learning, not that I’m happy about it. I was in court last week about a matter to do with bullying. I had seen this person four times and written four reports. Generally when I write a review report, having seen someone previously, what I’m interested in is what has happened since I last saw them regarding symptoms, treatment, work, relationships and so forth and of course also taking account of extra reports provided and commenting on them. I had done just that and (always a mistake) was feeling a little smug. When I was being cross-examined I realised that my first report although very comprehensive had no real details about particular instances of bullying. As the barrister said “you’ve just made general comments about the bullying haven’t you doctor, we have no idea whether it was at the very mild or at the very severe end of the spectrum? I was kicking myself for not having closely re-read my first report when I saw her subsequently because it was clearly a glaring omission. After the necessary blow to my ego I then decided, as all I always do if I have not done well in court, to make sure that in future I read the initial report closely with regard to the incident or incidents to make sure it was clear in my mind because if it is not clear in my mind how can be clear in anybody else’s mind. Another day, another lesson.
Illustrating the chaos that has resulted from the inability of the authors of the AMA Guides 3-5 to provide a method of assessment. New Zealand has modified AMA 4 chapter 14 Mental and Behavioural to produce the ACC Handbook.See also Bizarro World II.
The Motor Accident Authority in New South Wales published the Psychiatric Impairment Rating Scale also modifying chapter 14 AMA4. It is salutary to compare the two versions.
NEW ZEALAND ACCIDENT COMPENSATION ACT
The ACC User Handbook to the AMA “Guides to the Evaluation of Permanent Impairment” 4th Edition –
Using the same table in chapter 14 AMA 4 the New Zealand version is compared with the PIRS
ACC Handbook PIRS
class 1- 0-9% 0-3%
class 2-10-35% 4-10%
class 3-36-60% 11-30%
class 4-61-79% 31-59%
class 5-80-100% >60%
In the NZ system the figures taken from the four categories are not added, averaged or combined. The figures are to assist the assessor, in conjunction with clinical judgement, to arrive at a whole-person impairment rating based on the claimant’s current level of functioning, and expressed as a single percentage.
The Guidelines state:
The final whole -person impairment rating is not expected to be:
The PIRS determines the number for each category (the four categories have been broken up into six categories). The middle number that is the median number is determined and that is the final class. The numbers for each category are then added together. The sum of those numbers is used with a table correlating the median class with the total number of producing the final percentage impairment. Ironically a claimant may score in class 2 for each category leading to a median class 2 and a sum of 12 but the final percentage impairment is 6%!
The following examples illustrate the differences
Concentration, Persistence, and Pace
NZ ACC Handbook Class 2 Mild – 10–35%
Independent, but in some areas functioning is not particularly effective.
Impairment levels compatible with some (but not all) useful functioning.
Examples: ̇Can undertake basic training. But may have difficulty concentrating on complicated instructions.
̇Can focus intellectually on demanding tasks, but possibly only for a limited time.
̇Usually employed, but may have erratic work history marked with periods of unemployment.
̇May need some assistance with such things as decision making and finances.
The PIRS
Concentration, Persistence and Pace
Class 2 – 4-10% Mild impairment: Can undertake a basic retraining course, or a standard course at a slower pace. Can focus on intellectually demanding tasks for periods of up to thirty minutes, e.g then feels fatigued or develops headache
These absurdities are what led to a total rewrite of the chapter . We were all hopeful but something meaningful would urge,alas our hopes were dashed . The American Medical Association Guide to the Evaluation of Permanent Impairment 6th edition chapter on Mental and Behavioural Impairment (AMA6) has ditched the previous non-method and has substituted a dog’s breakfast. The method developed involves use of the Global Assessment of Function scale in the DSM IV, the Brief Psychiatric Rating Scale BPRS and a modified version of the PIRS. One is expected to combine the results from these different methods producing a final number. The GAF is so vague as to be almost useless, the BPRS is used to assess whether treatment has made any change for people with serious mental illness with an initial measurement and then a later measurement. Although it has been validated and is reliable, not in this context. I have already commented on my concerns about the PIRS.
This process is very time-consuming and is not, to say the least, an advance.
One of the many pluses of being a psychiatrist that is rarely discussed is that we hear fascinating stories, stories that are moving, stories of bravery, of cowardice, of stupidity and of grandest of spirit. One of my peer review group members recently spoke movingly about a particular case he was involved in many years ago and it struck me that all of us have stories that have stayed with us. It may have been because the story was so unusual, the suffering so extreme, the bravery was so extraordinary or because we stuffed up. One stuff up occurred when I was a neurology registrar and saw a woman in her 60s who had developed some limb weakness that was finally diagnosed as one of those rare neurological disorders, the excitement being the diagnosis as no treatment is available. Anyway this woman, I’ll call her Jane was very distressed. The consultant asked me to speak to her. She told me a story of loveless marriage with a husband who had recently retired and was driving her mad with her only solace being golf three times a week. She had no insight at first but then realised she was terrified that her limb weakness would force her to have to stay home and spend time with the husband. She ventilated freely with many tears, I congratulated myself on a job well done….. We did a ward round the next day and the consultant asked Jane how she was feeling. She said, and I can remember it as if it was yesterday “I was fine until that young man came to talk to me and I’ve been feeling terrible ever since!” Well, I was enraged, here was I exercising my therapeutic acumen, teasing out a difficult situation, giving her insight and she was blaming me! It was not fair. My consultant was not happy and made his displeasure widely known. It was a good lesson in leaving well enough alone.
The second memorable case was also a woman, she was called Pip. Pip and her husband had a cottage in the country and went there frequently with their children. She was walking home at dusk with her daughter on a winding country road, a utility drove past with a piece of timber projecting forward at an angle that struck her on the right side of her head causing a significant skull fracture. I saw her two years later with regard to her claim. She had totally lost her memory for recent events. Every day she had to learn anew who she was, where she was, who her family were, how to do even the simplest of activities. At some level she was aware of what she was lost and was quite devastated. It was a very isolated lesion, she was cognitively intact with no real changes in personality and no problems with mobility.
The third memorable case was a 26 year old electrician called Harry who was married with two young children. During the course of his work he had suffered a devastating electrocution leading to the destruction of both arms. Of course he was not able to return to work as an electrician. I saw him with regard to his claim and was surprised to see that he had not, in fact refused, to see a psychiatrist or psychologist or counsellor. His explanation was memorable, he said, “I feel like I’m circling a black hole. I have to keep looking away from it because if I look into I’m a gonner. I know that if I see anybody they will make me look into it and I won’t survive. My only way of keeping going is to try and not think about it and just get on with things.
I know that you must have similar stories. I would love to hear them. I would love to hear what you learned from them.
This impossible dichotomy was brought into the Victorian legislation in 1996 and has since metastasised. The then Minister for WorkCover stated (Hansard Victorian Legislative Council Page 1245 – 10 December 1996)
In June 1996 the surplus of assets over liabilities stood at something like $55 million. During the course of 1995-96 it was evident that the cost pressures were growing, and during the five months to November that pressure has further accelerated. The increases in total weekly benefits, in lump sum payments and legal and medical costs can be attributed largely to the extraordinary growth in the number of claimants classified as seriously injured. During 1995-96 the numbers of serious injury classifications grew by a net 1200 from 2910 to 4109 — a 41 per cent increase.”
And that
the number of workers who have been classified as seriously injured through the compounding of psychological or psychiatric factors with a primary physical injury having risen from less than 1 in 8 some 2 years ago to 1 in 4, and the figure is still rising.
The minister went on to say
the reality is that certain lawyers and doctors are abusing the system by using the secondary psychological or psychiatric factors, such as depression, to achieve serious injury status for their clients. I can do no more than quote … comments …made by Mr Koutsoukis from Maurice Blackburn, who stated on radio during the past few days:
We previously got them over the serious injury line by saying … that person is depressed.
Although the whole notion appears unjust it has been incorporated into the Victorian legislation including the Accident Compensation Act, the Transport Accident Act and the Wrongs Act. It has also been incorporated into New South Wales legislation. The argument is that build within the AMA Impairment Guides with regard to physical injury is some component for pain and suffering and that to also include a percentage related to psychiatric impairment would be double dipping.
in consultation with WorkCover and TAC Nigel Strauss and I developed a document called “Annotations for determining non-secondary psychiatric impairment”. Even using that document there are two areas which I find particularly difficult to tease out. I can give you two examples.
Bill was a 50-year-old man who had a back injury at work in a foundry. No real surprises there. He had physiotherapy treatment I was sent back to work after six weeks with a modified duties certificate. The stated that he should not lift more than 5 kg and should avoid repetitive movements, twisting and bending and should be able to change positions as required. There was realistically no meaningful work for him to do. His employer and his fellow employees resented him being back at work because there was more pressure on his thigh workers and his employer felt he was paying him but he was not producing. After a while his fellow workers began criticising Bill for not getting better and their complaints became quite overt. Bill was dreading going to work especially because his employer had him sit in the lunchroom most of the day reading the paper. The relationship between Bill, his employer and his fellow workers broke down and he ceased work in a bad state. He has lost all trust in his employer and has refused to go back to work there. He has limited skills and fewer job opportunities. He has applied for a serious injury application. He still has some back pain but his major concern now arises from his depression coming from what happened after he returned to work. Unless he has made a separate claim any psychiatric impairment has to be secondary to physical injury. This always seems inequitable to me.
The second situation that I find very difficult is those people who have made a personal injury claim who, in Victoria, have to exceed a threshold of 10% psychiatric impairment not secondary to physical injury. For many their claim arises out of a physical injury that may have settled.
Stella, an operating theatre nurse, had been treated for two or three years with Zoloft for depression and had developed a severe widespread rash. She had been seen by dermatologists and it was some time before the relationship between her rash and the Zoloft was recognised. Her Zoloft was stopped and the rash disappeared but in the meantime she had endured a great deal of discomfort, time off work, irritability and her quality-of-life and diminished markedly affecting her relationship with her husband and her children and she had difficulty coping with her work as an operating theatre nurse. She made a personal injury claim against her psychiatrist. The problem was that the rash is now gone but she continues to be distressed and miserable because of what she experienced. To my mind, her psychological response is secondary to the toxic effects of the drug and therefore does not count with regard to psychiatric impairment. Is that fair? I don’t think so but I don’t know how else the matter can be dealt with. What are your thoughts?