Print PDF

Share this page

Part 8 of the Motor Accident Guidelines: Health Practitioners authorised to give evidence in court and other dispute resolution proceedings

Introduction

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

8.2 This Part of the Guidelines applies to the appointment (including the reappointment) of health practitioners authorised to give evidence under section 7.52 on and from the date that these guidelines commence. A health practitioner holding current appointments under section 7.52 on the date these guidelines commence is appointed for the purposes of section 7.52 for the period of time being the remaining duration of the term of the health practitioner’s appointment or until that appointment is terminated, if terminated at an earlier date.

8.3 A health practitioner, (not being 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 health practitioners authorised to give evidence, or

8.4 Health practitioners authorised to give evidence under section 7.52 of the Act and these guidelines, must:

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

(b) comply with the relevant law including the Motor Accident Injuries Act 2017 (NSW), the Motor Accident Injuries Regulation 2017 (NSW), these Guidelines, Procedural Direction PIC4 – Expert Witness Evidence and any subsequent procedural directions issued by the President of the Personal Injury Commission relating to expert witness evidence. They should promptly notify the Authority of any compliance breaches.

(c) comply with the standards and conduct for medico-legal consultation, examination and reports set out in the NSW Medical Council Guideline – Medico-Legal Consultations and Examinations

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

(e) act in an ethical, professional and considerate manner when examining injured people and practise procedural fairness when conducting medical assessments and writing reports. This includes respectful communication with injured people and considering their individual needs, providing impartial assessments and ensuring that injured people are given the opportunity to explain any inconsistencies observed during an examination or in supporting material.

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

(g) have successfully completed the relevant Authority’s training requirements in permanent impairment evaluation, before undertaking and providing opinion on whole person impairment (WPI) assessments.

8.5 Health practitioners must not during the term of their appointment:

(a) provide treatment advice and/or services to an injured person about whom they are providing evidence as a health practitioner

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

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

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

(e) undertake medical assessments and give evidence outside of their area(s) of expertise.

8.6 To be authorised to give evidence in proceedings, a health practitioner must be authorised under section 7.52 and these guidelines at the time the evidence is given. For evidence given by written report, the health practitioner must be authorised at the time the health practitioner examines the claimant and writes the report. If evidence of the health practitioner is admitted into evidence, the health practitioner continues to be authorised to give further evidence on cross-examination and re-examination of that evidence in proceedings.

Joint medical assessments

8.7 Both parties shall use their best endeavours to agree to a joint medical or other health-related assessment, taking into account the individual circumstances and preferences of the injured person, to minimise the number of medical assessments that they are required to attend. Either party may initiate a request for a joint medical or other health-related assessment.

8.8 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 the claimant in the claim concerned.

8.9 The parties must instruct the health practitioner in writing to conduct the joint medical assessment, and to send the report and any supplementary reports to both parties on completion.

8.10 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 seven days of receiving the initial report and provide a copy of the request and supporting evidence to the other party.

8.11 A supplementary report must be agreed to by both parties to be considered a joint report . A report issued by the health practitioner to correct an error is not considered supplementary.

8.12 The insurer must meet the cost of the joint medical assessment, including the initial report and any supplementary reports agreed by the parties.

Appointment by the Authority to its list of health practitioners authorised to give evidence

8.13 A health practitioner seeking appointment (including re-appointment) to the Authority’s list of health practitioners authorised to give evidence must apply to the Authority by completing and submitting the application form available on the Authority’s website.

8.14 The Authority will determine the application for appointment against the eligibility requirements and notify the applicant in writing of its decision.

8.15 The Authority will publish on its website the details of health practitioners appointed to its list, including their names, contact details, practice locations, and other information relevant to their role as a health practitioner authorised to give evidence.

Eligibility requirements

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

(a) is a health practitioner registered 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, and is not subject to supervisory requirements

(b) has at least five years of full-time equivalent relevant clinical experience, and/or two years of full-time equivalent relevant clinical experience in addition to an advanced qualification recognised by the relevant professional body that sets training standards for its members, where a professional body has requested the Authority consider the qualification as relevant

(d) is in current clinical practice or a teaching position in the relevant specialty, or has recently been in clinical practice, or undertakes professional activities such that they are aware of current clinical practice

(e) has high-level communication skills, including interpersonal skills and report writing skills, such that they would be able to comply with the requirements for consultations, examinations and reports outlined in the NSW Medical Council titled ‘Guidelines for medico-legal consultations and examinations’

8.17 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 relevant third parties. This may include:

(a) information related to complaints, compliance, or breaches of legislation, guidelines, or fee schedules within the past 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 NSW Motor Accidents CTP Scheme

(c) any pending criminal charges or any criminal convictions and/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 CTP Scheme.

8.18 Health practitioners are appointed to the Authority’s list for up to three years, with an option for the Authority to extend the appointment, at its discretion. Health practitioners must re-apply to continue to be authorised to give evidence after the expiration of their term, unless the Authority has notified the health practitioner that the health practitioner’s term has been extended and the period of that extension.

8.19 Health practitioners appointed to the Authority’s list must continue to meet clauses 8.4 and 8.5, the eligibility requirements and comply with the terms of appointment to remain authorised during their period of appointment.

Declining an application

8.20 The Authority may decline a health practitioner’s application. If the Authority declines to appoint a health practitioner, the Authority will notify the practitioner in writing, including:

(a) brief reasons for that decision

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

8.21 If the health practitioner disagrees with the Authority’s decision, the health practitioner may ask the Authority to review its decision by writing to the Authority at [email protected] within 21 days of receipt of the decision. The health practitioner is to 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 of receiving the request for review or within 21 days after receiving the last document or information the Authority may request from the health practitioner, if the Authority requested additional information.

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

Terms of appointment

8.23 In addition to the requirements set out in clauses 8.4 and 8.5, health practitioners appointed to the Authority’s list must:

(a) complete at least two hours of continuing professional development (CPD) related to medico-legal practice during the three-year period of authorisation, including but not limited to training about conducting medico-legal assessments, dispute resolution, communicating with injured people and/or writing medico-legal reports. This may be as part of the general minimum requirements set out by AHPRA for each relevant Board and may be provided by any relevant CPD provider

(b) agree to the Authority publishing on its website the health practitioner’s name, contact details, practice location(s), and other information relevant to the terms and extent of their appointment

(d) notify the Authority within seven days of changes to any circumstances that may compromise their ability to meet the eligibility requirements and comply with the terms of appointment

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

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

(g) participate in the Authority’s performance framework for health practitioners authorised to give evidence, including complying with any mandatory training and data reporting requirements

(h) 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.

8.24 A health practitioner appointed to the Authority’s list must accept all referrals whether made on behalf of an injured person or an insurer, and must only decline a request 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

(d) they are a decision-maker at the Personal Injury Commission for the same claim

(e) for any other reasonable reason the health practitioner is unable to complete the assessment and report within the terms specified by the requesting party.

Restrictions

8.25 The Authority may impose restrictions on a health practitioner authorised to give evidence.

8.26 A restriction may include limiting the authorisation to give evidence in:

(a) specified medical matters, or

(b) medical matters in specified claims, or

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

8.28 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.

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, the health practitioner may request a review of the decision 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 if the authority requests further information, within 21 days after receiving the last document or information.

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 A health practitioner whose appointment has been revoked, or a health practitioner who ceases their appointment, must as soon as possible cancel any appointments for medical assessments due to take place after the date of revocation or cessation, and notify all affected parties of those cancellations. They must issue any reports related to the medical assessments conducted prior to their revocation or cessation as soon as possible. They must not accept any new bookings for medical assessments as a health practitioner authorised to give evidence under section 7.52 and these guidelines.

8.33 When a health practitioner’s appointment is revoked, or a health practitioner ceases their appointment, the evidence given by the health practitioner in the period when the health practitioner was authorised, including at the examination of the claimant and production of a report, is admissible for the purposes of section 7.52 of the Act. The health practitioner continues to be authorised for any cross-examination and re-examination during the proceedings.

Appointment by the Authority on application by the parties

8.34 If a claimant or insurer proposes to obtain evidence from a health practitioner not appointed to the Authority’s list of health practitioners authorised to give evidence, a claimant or an insurer may apply by writing to the Authority at [email protected] to seek the authorisation of that health practitioner. The health practitioner must be authorised prior to examining the claimant and writing a report.

8.35 A health practitioner appointed under this section must comply with the requirements set out in clauses 8.4 and 8.5 in these guidelines.

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

8.37 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.

8.38 The Authority will consider all relevant information 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 past 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 CTP Scheme

8.39 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 the health practitioner is authorised to give evidence and outline the terms of the appointment including any restrictions.

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

8.41 Unless otherwise specified by the Authority, a health practitioner appointed by the Authority on application by a party is authorised only 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.

8.42 A health practitioner authorised to give evidence by the Authority on application by a party must include in the health practitioner’s report(s) a statement that they are authorised by the Authority and any restrictions on the appointment that apply.

8.43 The Authority may revoke a health practitioner’s authorisation by the Authority on application by a party 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.