Joint Medical Examination Guidelines

1.  INTRODUCTION

1.1 The transport accident scheme is a statutory compensation scheme for people who sustain an injury as a consequence of a transport accident. The interests of the injured person (claimant) are the foremost consideration of all parties to these Guidelines.
1.2 Consistent with its mission and vision statement, Client Service Charter and public commitment to model litigant guidelines, the Transport Accident Commission (TAC) strives to assess and deliver the correct entitlements to claimants as expeditiously as possible. The role played by claimants’ lawyers in this process is recognised by the TAC by way of the claimant's lawyers initiating the process, proactively arranging and initiating medical exams, obtaining and collating documentation, and engagement of negotiation to facilitate the most appropriate outcome for claimants in accordance with the provisions of the Transport Accident Act 1986 (TAA).
1.3 The parties recognise that the processes giving rise to the assessment and delivery of benefits involves assessment by a suitably qualified medical practitioner. Where the assessment relates to impairment, practitioners must have completed training in the use of the relevant AMA Guides as amended by the TAA.
1.4 In consultation with the Joint Medical Examination Reference Group, which includes representatives from the Law Institute of Victoria (LIV), the Australian Lawyers Alliance (ALA) and medical examiners, the TAC has developed these Guidelines for the purposes of arranging Joint Medical Examinations (JMEs) under Section 60(2F) of the TAA. Also refer to the Joint Medical Examination Protocols – 1 July 2016 as agreed between the TAC, LIV and ALA.
1.5 The TAC, LIV and ALA all agree that these Guidelines outline appropriate mechanisms and standards for the assessment of claimants through the JME process.
1.6 In this document the term 'examiner' means a registered health practitioner within the meaning of the Health Practitioner Regulation National Law.
1.7 In this document the term ‘referring parties’ means the TAC and the claimant’s lawyer representing the claimant.
1.8 The relationship between an examiner and a person undergoing a JME differs from that in a usual practitioner/patient relationship or the Independent Medical Examination (IME). Notwithstanding this difference, it is expected that recognised ethical, professional and legal standards and the applicable law will be adhered to at all times.
1.9 These Guidelines have been agreed to by the TAC, LIV and ALA who agree that they will comply with them and promote their use.

2. OBJECTIVES

2.1 The objectives of these Guidelines are:
  2.1.1  To ensure that processes and procedures contemplated in Section 60(2F) of the TAA provide an efficient and expeditious method to assess claimants and deliver appropriate damages and entitlements to claimants who sustain injuries as a result of a transport accident;
  2.1.2 To minimise the number of medical examinations that a claimant is required to attend.
  2.1.3 To ensure that examiners comply with appropriate standards when assessing claimants.
2.2 The TAC maintains its commitment to adhere to model litigant guidelines.
2.3 All parties maintain compliance with the overarching obligations of the Civil Procedure Act 2010.

3. APPLICATION

3.1 These Guidelines apply to JMEs to be conducted pursuant to Section 60(2F) of the TAA for the purposes of determining benefits, disputes or common law entitlements under Parts 3, 6 and 10 of the TAA..

4. JME PROCESS

4.1 The process for lodging a request for a JME for claimant's lawyers can be found at (http://www.tac.vic.gov.au/providers/for-legal-professionals/joint-medical-examination-process-for-legal-professionals).
4.2 The JME process for examiners who are assessing a claimant can be found at (http://www.tac.vic.gov.au/providers/for-health-professionals/independent-medical-examiners/joint-medical-examination-process).

5. APPOINTMENTS

5.1 Examiners will receive written confirmation from the referring parties that the examination is jointly requested. Examiners must not undertake an examination as a JME unless they have received written confirmation from either referring party.
5.2 Examiners will examine the claimant on behalf of the referring parties. All communication in regards to the claimant’s examination must be collaborative. Any observations, concerns or comments should be incorporated into the report.
5.3 The claimant to be examined must not be kept waiting for an unreasonable time. Examiners should aim to see people within 30 minutes of the appointment time.
5.4 Examiners should notify the initiating party of the joint exam of any appointments that they need to cancel as soon as is practical after they become aware of the need for the cancellation.
5.5 Examiners should not undertake an examination if they are not qualified and experienced in the specialty for which the examination has been arranged. Examiners should notify the referring parties as soon as is practical after they become aware of an inappropriate referral.

6. EXAMINATIONS

Referrals

6.1 Examiners should view all relevant documents (e.g. medical reports, x-rays, surveillance material and medical records) sent by the referring parties. In the event additional material is required, examiners should contact the referring parties, advising the reasons why the additional material is required.
6.2 The non-initiating party will consider the initiating party’s letter of instruction and attached documentation. The non-initiating party will send any additional questions and material they would like the examiner to answer/review, which will be provided to the examiner at least 14 days prior to the examination date.
6.3 The TAC and claimant’s lawyer agree to take all reasonable steps to avoid unnecessary duplication of material sent to the examiner.
6.4 Referring parties offer no guarantee regarding number of referrals.
6.5 Examiners have the right to accept or decline any request by the referring parties to undertake an assessment.

Accessibility

6.6 It is expected that all examiners rooms to be utilised for the JME process are accessible to people with mobility issues (e.g. wheel chairs). If there are any access limitations, examiners must notify the initiating party as soon as possible.
6.7 If a claimant is unable to attend the examination due to access limitations or the claimant’s medical condition, the examiner may be asked to conduct an examination at another suitable location. This is subject to the examiner’s consent and to reaching agreement with the referring parties about suitable location and travel arrangements.

Interpreters

6.8 The initiating party of the JME will arrange for a qualified interpreter to attend the examination if required. It is preferred that family and friends do not act as interpreters. Examiners are requested to be sensitive to the presence of an interpreter if the claimant to be examined is to be undressed and to ask the claimant about the appropriateness of the interpreter being in the room during this time.
6.9 The TAC will pay the reasonable costs of an interpreter for the purpose of JMEs in accordance with its obligations under the TAA. Invoices and receipts should be submitted to TAC after the JME unless pre-payment from TAC has been organised.

Travel and Accommodation Costs

6.10 Claimants’ lawyers should liaise with TAC in respect to arranging travel and accommodation for claimants to be assessed through the JME process. The TAC will pay the reasonable cost of travel and accommodation for the claimant to attend the JME.
6.11 The TAC will pay the reasonable cost of travel and accommodation in accordance with its obligations under the TAA where the JME must travel to the claimant to conduct the examination. Invoices and receipts should be submitted to TAC after the JME unless pre-payment from TAC has been organised.

Surveillance

6.12 The TAC will not use scheduling of a JME for the purpose of conducting surveillance of the claimant.

Third party attendance

6.13 If a claimant requests the presence of a family member or friend for support during the examination, this may be acceptable provided that the examiner considers this appropriate in the circumstance. The third person should not be allowed to disrupt the examination .
6.14 There should be no objection to the third person assisting in clarifying aspects of a person’s medical and injury history but they should not be permitted to interfere with the normal interchange between the examiner and the person.
6.15 Claimants attending a psychiatric or neuropsychological examination will normally be seen without family members or friends because of the personal and private nature of the questions asked.
6.16 In specific circumstances, if required for proper assessment, examiners may interview family and friends separately to the claimant (e.g. minors, claimants with a head injury or psychological injury).

Length of appointment

6.17 Examiners must allocate sufficient time to allow for a fair and comprehensive examination to be carried out. Extra time may be required if an interpreter is being used.

Conduct during examination

6.18 It is expected that an examiner will treat claimants undergoing assessments with the same professional standards of care, consideration and courtesy that a private patient would expect.
6.19 A gown or other covering should always be offered if a claimant is asked to undress and an examiner should excuse themselves or move out of the claimant's line of sight while the claimant is undressing.

Expectation setting

6.20 At the commencement of the JME, examiners should explain:
  • the purpose of the JME;
  • the expected time it will take to conduct the JME;
  • their role as an examiner in the JME process, and that this does not extend to providing any treatment (other than in exceptional circumstances such as a medical emergency), or answering the claimant's own questions about treatment;
  • that their findings, opinions and recommendations will be contained in a report which will be sent to the referring parties, hence the information discussed during the examination will not remain confidential
  • that they are impartial, and reassure the claimant that the report will record their objective clinical diagnosis and that it is not the examiner's task to decide the claims issue;
  • the specialty in which they practise and its relevance to the JME.
  • Examiners should not make value judgements or personal comments to the claimant, advise the claimant of the findings, opinions or recommendations..
6.21 Examiners should clearly answer a claimant's questions about the purpose or relevance of any questions, procedures or other aspects of the JME.
6.22 Examiners should forewarn claimants if an examination, test or procedure is required which may be considered or interpreted as intrusive, or cause some discomfort or pain. Examiners should explain why the examination, test or procedure is necessary and reassure the claimant that it will not worsen their condition. Examiners should obtain the claimant's consent prior to conducting the examination, test or procedure. Where consent is not given, this should be noted in the report.

Tests

6.23 Non-invasive tests and imaging may be undertaken with the claimant's consent when required by the examiner to answer a question being asked by the referring parties or to properly provide an assessment.
6.24 Where examiners are unable to respond to questions or complete the assessment without tests of an invasive nature the examiner should advise of same within the report.

Personal attendance

6.25 Examiners must personally conduct the full medical JME including taking the history and preparing the JME report.

Non-Attendance Fees

6.26 The referring parties will take all appropriate steps and make reasonable endeavours to ensure the claimant attends the JME arranged with the examiner at the scheduled time.
6.27 The claimant's lawyers will advise the TAC and examiner in writing as soon as practicable of any cancellations or rescheduling of appointments.
6.28 The TAC agrees to pay the reasonable cost of non-attendance fees where notification is provided less than 3 working days prior to the examination. The examiner should submit an invoice for the reasonable non-attendance fee to the TAC who will arrange for payment.

Conflicts of interest

6.29 Examiners must not undertake an examination if a conflict of interest might arise, or be perceived to arise unless the examiner has notified the referring parties and both parties have agreed, in writing, to proceed despite the conflict. An example of where a conflict of interest might arise is if an examiner has provided treatment or services to the claimant previously (other than in their role as an examiner).
6.30 The referring parties consider it may be a conflict of interest for an examiner to provide treatment or services to a claimant after they have been subject to a JME.

Contact with treating healthcare practitioners

6.31 An examiner would usually not contact a claimant’s treating healthcare practitioner for the purpose of conducting a JME. Examiners are encouraged to obtain consent and to contact treating healthcare practitioners only if it will assist the examiner to raise urgent treatment recommendations. Written consent is not needed if the examiner has an overarching legal, ethical or professional obligation.
6.32 If examiners contact treating healthcare practitioners, the discussion should be documented in detail in the JME report.

Security

6.33 If there are concerns about a claimant's behaviour, the referring party will endeavour to notify the non-referring party and the examiner. The TAC will pay for provision of a security officer to ensure the safety of examiners, staff and other patients.
6.34 Where an examiner is concerned about their safety, the examination should be terminated and referring parties notified. Where required, a security officer will be provided to ensure the safety of examiners, staff and other patients.

REPORTS

7.1 Examiners will be required to send identical copies of the report to the TAC and the claimant’s lawyer. All communications pertaining to the examination must be included in the report. There should be no separate communications (including written or verbal) to either party.
7.2         Examiners should consider the potential readership when preparing reports. Reports are mainly used by the referring parties however reports may also be provided to the person who was the subject of the examination and treating healthcare professionals (with the consent of the examiner). They may be used in Court and may also be subject to requests made under the Freedom of Information Act 1982.
7.3         An examiner’s report must comprehensively address both the referring parties’ questions and consider all documentation provided by both parties. It is recommended that the questions and answers are included in the report so that the report can be read as a stand-alone document..
7.4         It is agreed by all parties that the JME report should:
  • be limited to to matters of professional opinion and not contain comments about what decision the examiner considers the TAC or claimant’s lawyerr should make unless there is a specific question;
  • be in plain English and avoid the use of jargon or language that is overly technical. Where technical language is required, a brief explanation of what any technical terms or phrases mean should be provided;
  • provide an accurate diagnosis based on references to a detailed and accurate history and an appropriate and thorough clinical examination;
  • contain clear and unambiguous professional opinions and, where required, recommendations based in science and with reference to best practice medicine or best clinical practice;
  • present an evidence-based approach to evaluating symptoms and clinical findings, as far as practicable;
  • note if there is insufficient clinical information to make a diagnosis;
  • contain reasons for all opinions expressed;
  • be consistent in that opinions should accord with examination findings;
  • be impartial, and not contain any value judgements or personal comments;
  • contain only relevant information and only disclose personal information to the extent that it is relevant to the findings, opinions or recommendations;
  • only include descriptions of a claimant’s appearance or demeanour during the examination to the extent that it is relevant to the findings, opinions or recommendations made (e.g. as part of a mental state examination), and only where the relevance is articulated;
  • be free of advocacy and/or bias for any party;
  • note whether support people were present at the examination (such as interpreters);
  • note the duration of the examination.
7.5         Reports are to be completed and sent to the referring parties within 10 working days of the examination, or when prepayment has been arranged, within 10 working days of receipt of payment. The referring party should be contacted if this is unachievable.
7.6         Where an examiner receives payment prior to submission of reports, repeated failure to submit reports within 10 working days of payment may result in revocation of this payment arrangement.

Supplementary reports

7.7 Unless otherwise stated, requests for a supplementary report should be considered jointly requested by the referring parties. Where the referring parties have not reached agreement, either party can obtain a supplementary report at their own expense.
7.8 An examiner may be required to undertake a re-assessment where a claimant’s condition is not substantially stabilised. Approval from the referring parties is required for there-assessment to proceed as a JME.
7.9        Where possible, the referring parties will provide one joint supplementary request letter to the examiner.

FEES

8.1 An examiner should invoice the TAC directly for JME reports or JME supplementary reports that have been agreed to by the referring parties.
8.2 The parties should refer to Clause 7.7 in respect to the fees associated with JME supplementary reports.
8.3 The TAC will pay the reasonable costs of all reports agreed to be undertaken or deemed to be agreed to be undertaken as JMEs within 21 days of receiving a tax invoice for the report from the examiner.

COURT AND TRIBUNAL ATTENDANCE

9.1 Examiners must be available to attend and give evidence in the Victorian Civil and Administrative Tribunal and in Court proceedings. Some proceedings may be held in regional areas.  This obligation continues beyond an examiner's term as an examiner in the JME process.
9.2 An examiner must be familiar with their obligations as an expert witness in accordance with section 10(3) of the Civil Procedure Act 2010 and the Expert Witness Code of Conduct (Form 44A) under the order 44.03 (1)(a) of the Supreme Court (General Civil Procedure) Rules 2005.  A copy of form 44A is provided as appendix 1 to this document.

NOTIFICATION

10.1 Examiners must notify the referring parties  immediately of any adverse findings made about them in a professional capacity.
10.2 Examiners must fully cooperate with the referring parties where a complaint has been made about them during the course of their role in the JME process.

Appendix 1

FORM 44A

Rule 44.01

EXPERT WITNESS CODE OF CONDUCT

1. A person engaged as an expert witness has an overriding duty to assist the Court impartially on matters relevant to the area of expertise of the witness.
2. An expert witness is not an advocate for a party.
3. Every report prepared by an expert witness for the use of the Court shall state the opinion or opinions of the expert and shall state, specify or provide -
  (a) the name and address of the expert;
  (b) an acknowledgment that the expert has read this code and agrees to be bound by it;
  (c)  the qualifications of the expert to prepare the report;
  (d) the facts, matters and assumptions on which each opinion expressed in the report is based (a letter of instructions may be annexed);
  (e) (i) the reasons for,
(ii) any literature or other materials utilised in support of,
(iii) a summary of - each such opinion;
  (f) (if applicable) that a particular question, issue or matter falls outside the expert's field of expertise;
  (g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications;
  (h) a declaration that the expert has made all the inquiries which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;
  (i) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate; and
  (j) whether any opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason.
4. Where an expert witness has provided to a party (or that party's legal representative) a report for the use of the Court, and the expert thereafter changes his or her opinion on a material matter, the expert shall forthwith provide to the party (or that party's legal representative) a supplementary report which shall state, specify or provide the information referred to in paragraphs (a), (d), (e), (g), (h), (i) and (j) of clause 3 of this code and, if applicable, paragraph (f) of that clause.
5. If directed to do so by the Court, an expert witness shall -
  (a) confer with any other expert witness; and
  (b) provide the Court with a joint report specifying (as the case requires) matters agreed and matters not agreed and the reasons for the experts not agreeing.
6. Each expert witness shall exercise his or her independent judgment in relation to every conference in which the expert participates pursuant to a direction of the Court and in relation to each report thereafter provided, and shall not act on any instruction or request to withhold or avoid agreement.