Summary of responses to the Post-implementation review of the AHP Framework discussion paper

SIRA conducted public consultation as part of the post-implementation review of the Authorised Health Practitioner Framework (the Framework), which relates to section 7.52 of the 2017 Act regarding restrictions on health practitioners who may give evidence in court and other dispute resolution proceedings.

A discussion paper was distributed to support the consultation, which was open from 15 July to 6 August 2021. SIRA received 16 responses to the discussion paper to the end of August 2021. The submissions of those who provided consent are published on the SIRA website. The following provides a summary of the feedback and is structured to be aligned with the questions raised in the discussion paper.

SIRA will consider these submissions in conjunction with the recommendations of the independent statutory review into the 2017 Act conducted by Clayton Utz and Deloitte. SIRA is also seeking to obtain the voice of the injured person to understand their experience.

The key themes raised in responses to the discussion paper include:

It was suggested that early and just resolution of disputes and improved claimant experience could be achieved by requiring insurers to offer joint medical examinations, with parties obtaining unilateral evidence when joint examinations were not agreed upon.

Another submission suggested that a SIRA panel be formed to review and revoke authorisation for those practitioners who consistently submitted reports advocating for claims not supported by evidence.

Training was considered a means of ensuring procedural fairness, enhancing communication skills and engaging in earlier risk assessment to encourage earlier dispute resolution.

The availability of authorised practitioners in particular specialties or geographical locations was considered a barrier to timely dispute resolution. Administrative processes and the maximum fee recoverable were regarded as deterrents to practitioners becoming authorised.

The Motor Accident Guidelines (MAGs), which provide for the appointment of authorised health practitioners, do not mandate joint medico-legal assessments. They permit a legally represented injured person and an insurer to agree to a health practitioner not on SIRA’s authorised list to conduct a joint medico-legal assessment. The discussion paper sought feedback about how to incentivise the uptake of joint medico-legal assessments in the CTP scheme.

There was general support for joint medico-legal assessments and varying views as to whether they should be mandatory. One submission suggested that the legislation be amended to require insurers to offer joint medico-legal examinations six months after a motor vehicle accident. Parties who could not agree upon a joint examination would be permitted to obtain unilateral medico-legal evidence.

Another suggested that claimants should be able to opt into the joint medico-legal process. For those who did opt in, insurers would be required to offer joint assessments and suggest three practitioners to carry them out. If the claimant disagreed with the three options, their legal representative could offer three options in reply. If no agreement could be reached, an independent arbiter at SIRA could choose someone on the Commission’s list of medical assessors.

Several submissions discussed the use of financial levers to incentivise joint assessments. Suggestions included requiring plaintiffs to pay for non-joint assessment reports; adopting 50/50 cost sharing between the parties, with each party receiving the report upon payment; and elevating the chargeable rate for a joint medico-legal report above the rate for a unilateral report.

Eligibility requirements and terms of appointment

One submission suggested introducing caveated ‘and/or’ clauses may better reflect the balance between clinical and other knowledge. While the MAG eligibility requirements include an understanding of the treatment and/or management of motor accident-related injuries, the submission suggested there be more of a focus on knowledge of clinical return to activity practice.

It was also suggested that any medical doctor registered with AHPRA and willing to comply with procedural directions for expert witness evidence should be eligible to be an authorised health practitioner.

There were mixed views about continuing eligibility after authorisation, with one submission noting it should be based upon a review of past reports. In cases where the validity of practitioners’ reports was questioned, those practitioners should be reviewed and potentially lose their authorisation. Some submissions noted there should be no requirement to reapply for authorisation as long as practitioners were complying with the requirements.

A number of submissions noted that, regardless of changes made to the Framework, SIRA should retain the power to discipline outlier practitioners and revoke their authorisation.

One submission noted greater uptake of joint assessments may be encouraged with mandatory reporting of insurers to SIRA of the authorised health practitioners they engaged throughout the year, and whether they were engaged on a joint medico-legal basis.

The discussion paper sought feedback about the ease, efficiency and transparency of the application and review process outlined in the MAGs.

Several respondents considered the administrative processes to be onerous in terms of time and documentation and indicated this was a deterrent to specialists to register as authorised health practitioners. It was suggested that this may contribute to a lower representation of some specialities and geographical areas, particularly in regional NSW.

It was also noted that time was being invested in a lengthy application process and responding to eligibility criteria, when the criteria was not necessarily considered to adequately identify practitioners who could work effectively in the scheme. Other issues raised were delays in notifying applicants of outcomes, a lack of clarity around non-approval, and the need to extend the period of time given to unsuccessful applicants to respond to a SIRA decision of non-approval.

It was also suggested that AHPRA’s process for evaluating competence may be sufficient, negating the need for another process through SIRA.

SIRA has identified issues with the quality of some authorised health practitioner applications, and some practitioners attempt to apply more than once to become authorised. Applicants may not be successful in obtaining authorisation for reasons such as a failure to meet the criteria; issues with their ability or willingness to abide by the terms of appointment; a history of complaints, compliance breaches or criminal record; provision of false, misleading, or plagiarised information; and issues with their ability or willingness to participate in SIRA’s frameworks for performance, compliance, or complaints handling.

The discussion paper sought feedback about how the quality of applications could be improved.

Some submissions noted that changing the eligibility criteria to better reflect the functions of authorised health practitioners would improve the quality of applications. Such criteria would include experience in conducting assessments, report writing and working within a medico-legal environment.

Other suggestions included using professional bodies to raise awareness among their members of the opportunity to become an authorised health practitioner and providing training for those seeking authorisation.

It was noted that the AHPRA registration process was sufficient, as it was AHPRA’s role to ensure health practitioner compliance with professional standards.

One submission noted the focus should be on the quality of the practitioner, not the quality of the application.

SIRA publishes on its website the names of all authorised health practitioners, their contact details, locations, active or inactive status, dates of authorisation and other relevant information. The discussion paper sought feedback about how SIRA’s published list could be improved to ensure it is simple for injured people, insurers and legal professionals to use.

Several submissions noted the user experience could be enhanced with a digital database, portal or search and filter function by name, location, expertise, qualifications, appointment date and permanent impairment modules. It was suggested that the column regarding permanent impairment modules should reflect that authorised health practitioners may be involved in matters other than permanent impairment. Adding more information about practitioners’ areas of specialty and expertise, training modules they have undertaken and the types of assessments they could do was also considered useful.

It was suggested to remove inactive practitioners from the list, and to remove terminology not easily understood by the public.

Some submissions suggested that SIRA’s published list was confusing in the way that it aligned with AHPRA’s method for listing professions, specialties, and endorsements and further clarification would be helpful.

Authorised health practitioners are required to adhere to the relevant codes for expert witnesses and the NSW Medical Board Policy for medico-legal services. The discussion paper sought feedback about how SIRA could ensure that authorised health practitioners had appropriate training and experience and consistently delivered high-quality reports.

Several submissions highlighted the need for training in writing medico-legal reports and assessment. Other training needs identified were communication skills and peer review of reports. One submission suggested that SIRA should broaden the scope of support, information and training to current and prospective authorised health practitioners to include SIRA’s frameworks for performance, reporting for publications regarding compliance data, training, and complaints handling. It was suggested that SIRA could promote existing e-learning opportunities offered by professional associations. It was also suggested that some training modules should be mandatory.

There was a suggestion that SIRA could set benchmarks for standards of reports, in conjunction with the Australian Medical Association, audit CTP claims at random and review the medico-legal reports to ensure the benchmark requirements were met. A feedback mechanism could be implemented post-audit, after which a follow-up audit could be conducted. Failure by the practitioner to amend their practices would then result in SIRA considering whether their continued appointment on the list remained appropriate.

Some submissions noted that AHPRA’s role was sufficient in overseeing training with respect to its continuing professional development (CPD) requirements, and suggested it was not SIRA’s role to ensure authorised health practitioners had appropriate training. A number of organisational respondents noted they could develop and provide CPD related to improving the quality of reports.

SIRA will consider the responses to this review together with any recommendations or commentary from the independent statutory review into the 2017 Act conducted by Clayton Utz and Deloitte. Stakeholders have also had the opportunity to contribute to that review.

To ensure any changes to the system are person-centred, SIRA is seeking to understand the experience of injured people, particularly with medico-legal issues arising from the management of their motor vehicle accident claims and their experiences with authorised health practitioners. SIRA will undertake a separate consultation process to gain this perspective.

Feedback from these consultations will inform options for potential system improvement. SIRA anticipates being in a position to advise stakeholders of the outcome of these consultations in the first half of 2022.