The Royal Australian & New Zealand College of Psychiatrists (RANZCP) recently released Professional Practice Guideline 11 (the Guideline), which deals with reports and conducting independent medical examinations in medico-legal settings. The Guideline is intended to provide a basic standard of practice and to assist psychiatrists in observing their professional obligations.
Requests for independent medical examinations and reports
Psychiatrists and other medical professionals are regularly asked to undertake independent medical examinations and provide reports within the area of their expertise for use in litigation. Each state and territory has its own civil procedure rules with respect to expert witnesses and their expected code of conduct. A common theme throughout these rules is that there is an overriding duty for the expert (medical or otherwise) to assist the Court impartially on matters relevant to their area of expertise. Psychiatrists who are asked to assess individuals and/or provide reports for use in litigation, should familiarise themselves with the relevant expert witness codes of conduct and rules applicable to the appropriate jurisdiction.
The Guideline sets out a number of considerations to which psychiatrists should adhere when undertaking an independent medical examination or providing an expert report. For the conduct of independent medical examinations, the Guidelines list a number of explanations and clarifications that the psychiatrist should address with the individual being assessed prior to conducting an examination, being:
- Clarity must be sought by the psychiatrist as to whether the individual understands that the examination is happening because a request has been made by a third party (usually the lawyer of a party to litigation) or because orders have been made by a Court, Tribunal or other body.
- Psychiatrists are to inform the individual that their primary role is to provide a report to enable decision-making by the referrer or other relevant body (such as a Court or Tribunal).
- The Guidelines specify that psychiatrists should explain the purpose of the consultation, form of the interview, arrangements made for the individual's privacy and the availability of breaks and/or refreshments.
- Importantly, psychiatrists should explain the limits of confidentiality regarding the examination and report and that the outcomes may be presented to the referrer and/or another relevant body.
When it comes to a psychiatrist's interaction with individuals to be assessed, they must carefully consider:
- Their duties of confidentiality to both the individual and the referrer, including disclosing any conflicts of interest and minimising harm.
- If an individual has been referred to a psychiatrist for the purposes of an independent medical examination and report, the psychiatrist should not offer to provide routine and ongoing treatment for that individual.
- If emergency treatment is required, it should only be provided where no reasonable alternative exists, and the individual should then immediately be referred to a treating health professional for ongoing care.
- From time to time, an individual may request a support person be present for the examination. Psychiatrists should consider these requests on a case-by-case basis and balance their decision on the individual's desire and the requirements of the examination. In any event, if a support person is present, then this must be disclosed within the report.
- Sometimes referrers have obtained surveillance footage of the individual to assist in determining their capacity and impacts of their injury on everyday life. If surveillance footage/reports are included in the letter of request, psychiatrists need to ensure that the individual is aware of those. If footage is provided, then a psychiatrist may view it, but this must be in the presence of the individual.
- If an individual requests that the examination is recorded, the psychiatrist should refer to the laws in the relevant jurisdiction. If in doubt, the psychiatrist should seek to clarify the legality of the recording before commencing the examination and are free to decline the request.
- On rare occasions, examinations may be conducted via videoconference or teleconference; however psychiatrist should carefully consider the appropriateness of this modality in the context of conducting their examination. If an examination is conducted in this way, then this needs to be stated in the report and any technical issues that may have affected the quality of the examination noted.
- If a psychiatrist receives new information from a referrer after preparing the report report, the psychiatrist should consider whether a further interview is required to clarify the significance of the new information with the examined individual. If a further interview is arranged but not able to be carried out, then a psychiatrist may consider declining to provide a revised report.
Obligations and ethical duties
The Guideline separates the obligations of psychiatrists when providing a report pursuant to a request for an expert opinion and providing a report in the context of being a treating psychiatrist for the individual being assessed. Importantly, the Guideline identifies that psychiatrists should consider their ethical duties when providing reports as a treating psychiatrist, including prioritising the health interests and needs of the individual being assessed and identifying in their report that they are or have been the subject's treating practitioner.
Psychiatrists are bound by the ethical and professional standards set out in the Australian Good Medical Practice: a Code of Conduct for Doctors and the RANZCP Code of Ethics. The Guideline states that psychiatrists must follow these Codes when undertaking independent medical examinations and/or preparing medico-legal reports. As to maintaining professional standards and relationships, the Guideline provides that psychiatrists must not make unprofessional or personally critical comments of other psychiatrists, other professionals or their expert opinions. Any opinions included in medico-legal reports should be based on contemporary medical and scientific standards.
Psychiatrists practising in Australia and New Zealand should familiarise themselves with the Guideline as well as the RANZP Code of Ethics and Professional Practice Guidelines prior to undertaking independent medical examinations and preparing medico-legal reports. Once a psychiatrist has received a request to provide a report, they should also familiarise themselves with the expert witness codes of conduct and rules applicable to the relevant jurisdiction. Any queries regarding those codes of conduct and rules should be directed to the individual requesting the report or examination prior to commencement.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.