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Part 8 of the Motor Accident Guidelines: Authorised Health Practitioners

Authorised Health Practitioners

Introduction

8.1 This Part of the Guidelines provides for the appointment of health practitioners for the purposes of authorisation under Division 7.7, section 7.52 of the Act.

8.2 This Part of the Guidelines applies to all appointments commencing on or after 1 December 2019.

8.3 A health practitioner may be appointed as a decision-maker in the Dispute Resolution Service and as an authorised health practitioner at the same time. However, a health practitioner may not act in both roles for the same claim.

Health practitioners authorised to give evidence

8.4 Section 7.52 of the Act provides for the admissibility of evidence in certain proceedings. A health practitioner, other than the injured person’s treating health practitioner, is authorised to give evidence in proceedings for the purposes of section 7.52 by:

(a) an agreement between the parties for the health practitioner to conduct a joint medical assessment, or

(b) appointment by the Authority to its list of authorised health practitioners, or

(c) appointment by the Authority for a specific purpose and duration on application by a claimant or insurer.

8.5 A health practitioner is not authorised to give evidence in proceedings unless the practitioner is authorised under these Guidelines at the time the evidence is given. For evidence given by written report, this means that the health practitioner must be authorised at the time they examine the claimant and write the report.

8.6 If evidence given by the health practitioner is admitted in the proceedings, the practitioner is always authorised to give further evidence on cross-examination and re-examination of that evidence during proceedings.

Joint medical assessments

8.7 In a claim, where a legally-represented claimant and an insurer agree to a health practitioner conducting a joint medical assessment, that health practitioner is authorised under section 7.52(1)(b) of the Act for the purposes of that claim.

8.8 The parties must instruct the health practitioner in writing to conduct the joint medical assessment. The joint instruction letter must state that:

(a) the health practitioner is to perform a joint medical assessment, and

(b) the health practitioner must send the report and any supplementary reports to both parties on completion.

8.9 If a party identifies an error in the report, it may request the health practitioner to re-issue the report with the correct information. The party must send the request and supporting evidence to the health practitioner in writing within 7 calendar days of receiving the initial report and provide a copy of the request and supporting evidence to the other party.

8.10 No supplementary reports can be requested unless agreed to by both parties. A report issued by the health practitioner to correct an error is not considered supplementary.

8.11 The insurer must meet the cost of the joint medical assessments, including the initial report and any supplementary reports.

Appointment by the Authority to its list

8.12 A health practitioner seeking appointment to the Authority’s list of authorised health practitioners must apply to the Authority by completing and submitting the application form available on the Authority’s website (https://www.sira.nsw.gov.au/).

8.13 As far as reasonably practicable, the Authority will ensure that there are authorised health practitioners appointed in the regional areas of NSW.

8.14 The Authority will determine the application for appointment against the eligibility requirements and notify the applicant in writing of its decision. If the Authority declines to appoint a health practitioner, the Authority’s decision will include:

(a) brief reasons for that decision,

(b) a period of time, if any, before the health practitioner may re-apply for appointment and the reasons for that nominated period.

8.15 A health practitioner seeking to re-apply must complete a new application form.

8.16 If the health practitioner disagrees with the Authority’s decision, they may ask the Authority to review its decision by writing to the Authority within 14 days of  receipt of the decision, and provide any relevant information as to why their application should be accepted. The Authority will undertake the internal review and notify the health practitioner of the outcome within 21 days after receiving the request for review or after receiving the last document or information the Authority may request from the health practitioner.

8.17 The Authority will publish on its website (https://www.sira.nsw.gov.au/) the names of all authorised health practitioners, their contact details, practice locations, and other information relevant to their role as an authorised health practitioner.

8.18 Health practitioners appointed to the Authority’s list must continue to meet the eligibility requirements and comply with the terms of appointment to remain authorised under this section.

8.19 The NSW Medical Board Policy ‘Guidelines for medico-legal consultations and examinations’ (File reference DD10/10871 revised December 2005, on SIRA’s website) applies to all health practitioners appointed under this section. Where the Policy refers to the NSW Medical Board’s Code of Professional Conduct: Good Medical Practice, this only applies to health practitioners who are medical practitioners under the Medical Practice Act 1992.

Eligibility requirements

8.20 The Authority may appoint a health practitioner to its list of authorised health practitioners if it is satisfied that the health practitioner:

(a) has at least five years of full-time equivalent relevant clinical experience, including an understanding of the treatment and/or management of motor accident related injuries

(b) holds current General or Specialist registration with the Australian Health Practitioner Regulation Agency (AHPRA) with no conditions, undertakings, reprimands, limitations or restrictions on registration as a result of a disciplinary process

(c) is not subject to supervisory requirements, or does not have any provisions on their registration that may adversely impact their performance in the role

(d) has high-level communication skills, such that they would be able to comply with the requirements for consultations, examinations and reports outlined in the NSW Medical Board Policy titled ‘Guidelines for medico-legal consultations and examinations’ (File reference DD10/10871 revised December 2005, on SIRA’s website).

8.21 The Authority will consider all relevant information available to assess whether a health practitioner meets the eligibility requirements and may request additional information from the applicant or third parties. This may include:

(a) information related to complaints, compliance, or breaches of legislation, guidelines, or fee schedules within the last 10 years

(b) conditions on registration or current disciplinary proceedings that may affect the practitioner’s registration, ability to undertake the role, or integrity of the motor accident insurance scheme of NSW if appointed

(c) if the practitioner has any pending criminal charges or has, within the last 10 years, been convicted of any criminal offence or demonstrated behaviour that may  affect the practitioner’s ability to undertake the role with impartiality and fairness., or may affect the integrity of the motor accident insurance scheme of NSW.

Restrictions

8.22 The Authority may appoint an authorised health practitioner to its list with or without making the appointment subject to restriction.

8.23 Without limiting the above clause, a restriction may include limiting the authorisation to give evidence in:

(a) specified medical matters, or

(b) medical matters in specified claims, or

(c) medical matters related to specified claimants or kinds of claimants.

8.24 The Authority may also restrict a health practitioner’s appointment to a defined period or for the duration of a specific claim.

8.25 The Authority may impose a restriction on a health practitioner’s appointment at any time during the period of authorisation, after first notifying the health practitioner.

Terms of appointment

8.26 Appointment as an authorised health practitioner requires that during the term of appointment the health practitioner must:

(a) act without bias and in a way that does not give rise to an apprehension of bias in the performance of their responsibilities

(b) comply with the relevant law, including the Motor Accident Injuries Act 2017, the Motor Accident Injuries Regulation 2017, and these Guidelines, including the Expert Witness Code of Conduct in Part 7, and promptly notify the Authority of any compliance breaches

(c) act in an ethical, professional and considerate manner when examining injured persons

(d) agree to the Authority publishing on its website (www.sira.nsw.gov.au) the health practitioner’s name, contact details, practice location(s), and other information relevant to the terms and extent of their appointment

(e) notify the Authority within 14 calendar days of any change to name or details

(f) have access to the necessary resources and infrastructure to do all administrative activities necessary for the role

(g) comply with all legal requirements for practice, including relevant policies and codes of conduct

(h) comply with the standards and conduct for medico-legal consultations, examinations and reports, as set out in the NSW Medical Board Policy titled ‘Guidelines for medico-legal consultations and examinations’ (File reference DD10/10871 revised December 2005, on SIRA’s website). Where the Policy refers to the NSW Medical Board’s ‘Code of Professional Conduct: Good Medical Practice’, this only applies to health practitioners who are medical practitioners under the Medical Practice Act 1992

(i) establish and maintain appropriate and secure record management systems to manage work and maintain records and data lawfully and efficiently

(j) comply with all privacy obligations including under the Health Records and Information Privacy Act 2002 (NSW) and the Privacy Act 1988 (Cth)

(k) participate in the Authority’s performance framework for authorised health practitioners, including complying with any mandatory training required by the Authority for authorisation, and the Authority’s data reporting and training requirements

(l) co-operate with the Authority’s complaints-handling framework, including responding to complaints with full and accurate details and, when indicated by the Authority, taking remedial action.

8.27 Appointment as an authorised health practitioner requires that during the term of their appointment by the Authority to its list of authorised health practitioners, the health practitioner must not:

(a) provide treatment advice and/or services to injured persons referred to them for examination or assessment in their capacity as an authorised health practitioner

(b) accept a referral or examine an injured person if the authorised health practitioner has a conflict of interest

(c) ask for or accept any inducement, gift, or hospitality from individuals or companies, or enter into arrangements that could be perceived to provide inducements, that may affect, or be seen to affect, their ability to undertake the role of an authorised health practitioner in an impartial and unbiased manner

(d) engage in activities or publicly express opinions that might be perceived to compromise the practitioner’s ability to undertake the role of an authorised health practitioner in an impartial and unbiased manner

(e) undertake medico-legal assessments in claims made under the Motor Accident Injuries Act 2017 outside of their area(s) of expertise.

8.28 A health practitioner who is appointed as an authorised health practitioner should accept all referrals whether made on behalf of an injured person or an insurer, but should decline a request for examination or assessment if:

(a) they are not adequately qualified or experienced

(b) the request relates to a medical matter for which the health practitioner is not authorised to give evidence

(c) they have a conflict of interest (personal, work-related, or financial)

(d) for any other reason they are unable to complete the task within the terms specified by the requesting party.

Cessation of appointment

8.29 The Authority may revoke a health practitioner’s appointment at any time. The Authority will notify the health practitioner in writing of its revocation and the reasons for the revocation.

8.30 If the health practitioner disagrees with the Authority’s decision, they may request areview of the decision by  within 14 days of receipt of the decision and provide any relevant information as to why the appointment should not be revoked. The Authority will undertake the review and notify the health practitioner of the outcome within 21 days after receipt or after receiving the last document or information the Authority may request from the health practitioner.

8.31 A health practitioner may cease their appointment at any time during the term of the appointment by notifying the Authority in writing.

8.32 If a health practitioner’s appointment is revoked or ceased, the evidence given by the health practitioner in the period that they were authorised remains admissible for the purposes of section 7.52 of the Act and any cross-examination and re-examination of that evidence during proceedings is not affected.

Appointment by the Authority on application by the parties

8.33 Where a claimant or insurer proposes to obtain evidence from a health practitioner not appointed by the Authority to its list of authorised health practitioners, a claimant or insurer may apply by writing to the Authority to seek the appointment of that health practitioner to be authorised.

8.34 The application to the Authority must include:

(a) reasons why the applicant party cannot obtain evidence from a health practitioner on the Authority’s list

(b) reasons why a joint medical assessment cannot be arranged

(c) the name, address and qualifications and/or experience of the health practitioner the applicant party requests the Authority to appoint

(d) evidence that the health practitioner agrees to be bound by the Expert Witness Code of Conduct outlined in Part 7, and the guidelines relating to consultations and reports outlined in the NSW Medical Board Policy titled ‘Guidelines for medico-legal consultations and examinations’ (File reference DD10/10871 revised December 2005, on SIRA’s website)

(e) details of the specific claim or claims for which the evidence is being sought, including claim number, claimant name, and other identifying information.

8.35 For the purposes of section 7.52, the Authority may appoint the nominated health practitioner if the Authority is satisfied that:

(a) the applicant party cannot obtain the required evidence from a health practitioner on the Authority’s list, and

(b) the health practitioner has suitable qualifications and skills to give the evidence.

8.36 The Authority will determine the application for appointment and notify the applicant in writing of its decision. Where the Authority accepts the appointment, the Authority will also notify the health practitioner that they are authorised to give evidence and outline the terms of their appointment including any restrictions.

8.37 The claimant or insurer relying on evidence by a health practitioner appointed under this clause must provide to the other party a copy of the Authority’s notification of authorisation at the time the report is served or relied on, whichever is the earlier.

8.38 Unless otherwise specified by the Authority, a health practitioner appointed under this clause is only authorised for the purposes and duration of the relevant claim or claims. The Authority may impose further restrictions on the appointment at any time during the period of authorisation.

(a) A health practitioner appointed under this clause must include in their report(s) a statement that they are authorised by the Authority and any restrictions on the appointment that apply.

8.39 The Authority may revoke a health practitioner’s appointment at any time. The Authority will notify the applicant and the health practitioner in writing and advise the reasons for the revocation. The guidelines for ‘Cessation of appointment’ in this Part will apply.