MEDICO-LEGAL RELATIONS A RESTATEMENT THE LAW SOCIETY OF NEW SOUTH WALES AND AUSTRALIAN MEDICAL ASSOCIATION (NSW) LIMITED 1 March 2010

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1 MEDICO-LEGAL RELATIONS A RESTATEMENT THE LAW SOCIETY OF NEW SOUTH WALES AND AUSTRALIAN MEDICAL ASSOCIATION (NSW) LIMITED 1 March 2010 CONTENTS 1. Introduction 2. The role of the legal practitioner 3. The role of the medical practitioner 4. The medical report 5. Payment of medico-legal fees 6. Hearings 7. Resolution of disputes 8. Access to medical information 9. Recommended medico-legal fees and expenses Schedule Allowances to Witnesses and Suggested Fees for Medical Examinations and Reports 1. INTRODUCTION 1.1 The philosophy underlying this Restatement is that optimal outcomes can be achieved by cooperation. There will, at times, be differences of interest and of emphasis between the medical and legal professions. That there should be such differences is both healthy and necessary. However, common sense, fairness and a professional approach should prevail in the dealings between the professions. 1.2 Legal practitioners and medical practitioners should, in the course of their practice, conduct their dealings with each other according to the same principles of honesty and fairness which characterise their relations with the courts and their fellow professionals, and in a manner that is consistent with the interests of the client/patient. Both professions are expected to adhere to their respective Statements of Ethics. 1.3 The objects of this Restatement are: To promote and foster a spirit of mutual co-operation and understanding between the medical and legal professions To make each profession aware of the duties, the responsibilities and the obligation of the other in safeguarding the interests of a client/patient. 1

2 1.3.3 To make each profession aware of the responsibilities of the other in relation to: the preparation of a medical report, the production, under a subpoena 1 as required by law or under the Health Records and Information Privacy Act 2002 (NSW) with the consent of the patient, of medical records or clinical notes relating to a patient, the attendance (if and when required) under a subpoena to give evidence in legal proceedings, and the payment of fees properly payable in respect of any consultation/medico-legal examination, the preparation of a medical report, noting that preparation time can be considerable (for example, when the patient has not consulted the medical practitioner recently), and any production or attendance to give evidence in court. 1.4 To provide a means whereby the members of each profession may obtain appropriate information in relation to matters of practical difficulty affecting professional relations with members of the other profession. 1.5 This Restatement does not specifically deal with legal or medico-legal work for workers compensation matters. WorkCover NSW has a range of requirements for provision of information and reports between parties in these matters and further direction should be sought directly from WorkCover. 2. THE ROLE OF THE LEGAL PRACTITIONER 2.1 The primary role of the legal practitioner representing a client/patient as plaintiff or applicant in the context of an injury or condition, compensation claim or claim for damages ( a claim ) is to advise and represent the client with a view to ascertaining whether a legal claim for allowance, benefit, compensation or damages exists, and to obtain proper and adequate allowance, benefit, compensation or damages for the client. 2.2 The role of the legal practitioner representing a defendant or respondent in the context of a claim, whether an employer, insurance company or a person who is claimed to be responsible for a condition or injuries suffered or sustained by the plaintiff, is to advise and represent the defendant with a view to examining the merits and value of the claim and, if appropriate, resisting any such claim in court. 2.3 It is the duty of the legal practitioners for both plaintiff and defendant to ensure that expert opinion is obtained and available to establish, as may be relevant: the nature / history of the incident/accident; 1 The word subpoena in this Restatement is to be read as encompassing equivalent documents, such as directions, summonses or orders for production or to give evidence, as the context requires. 2

3 the diagnosis of the nature and extent of the condition or injury; the relationship of any such condition or injury to the incident/accident; the therapeutic or other treatment provided and required; the prognosis for recovery from the condition or injury; the effect (in both short and long term) of the condition or injury on the client/patient in relation to employment and/or enjoyment of life, and in relation to a claim of alleged medical negligence, an opinion in relation to whether the treatment and/or advice given departed from proper professional standards having regard to relevant definitions and terms of legislation and other matters of law as explained by the referring legal practitioner. 3. THE ROLE OF THE MEDICAL PRACTITIONER 3.1 The primary role of a treating medical practitioner is to identify the condition or injury and treat the patient with a view to remedying or curing any condition or injury suffered or sustained and aiding the patient s recovery. It is recommended that, with the prior consent of the patient, a medical practitioner should provide such expert advice and/or report to the patient s legal practitioner as he or she may reasonably require including, for example, the matters referred to in 3.2 below. However it is noted that a medical practitioner is under no obligation to prepare a report in relation to his/her treatment of a patient. A treating medical practitioner is obliged, in accordance with legislation, to provide copies of a patient s medical records if requested to do so by or on behalf of a patient. The medical practitioner may charge reasonable copying fees, information regarding which can be obtained from AMA (NSW). 3.2 The role of a non-treating medical practitioner is to provide such expert advice and/or report as may be required to establish: his or her opinion as to the diagnosis of the nature and extent of any such condition or injury; his or her opinion as to the relationship of any such condition or injury to a particular incident/accident; his or her opinion as to the prognosis for recovery from the condition or injury; his or her opinion as to the effect (in both short and long term) of the condition or injury of the patient in relation to employment and/or enjoyment of life, if asked to do so in relation to a claim of alleged medical negligence, his or her opinion in relation to whether the treatment and/or advice given departed from proper professional standards having regard to 3

4 relevant definitions and terms of legislation and other matters of law as explained by the referring legal practitioner, and to comply with such expert witness code of conduct as may apply in the court or tribunal in which the condition or injury compensation claim is made. 4. THE MEDICAL REPORT 4.1 In this Restatement a medical report required for legal purposes is referred to as a medico-legal report. Special considerations in relation to criminal proceedings 4.2 A medico legal report is sometimes presented on behalf of a defendant (accused). It is usually a report prepared by a psychiatrist, with or without supporting reports from a treating general practitioner. On some occasions, a medico legal report from a general practitioner is deemed sufficient. The guidelines set out in this Restatement, although more specifically directed to reports prepared for use in civil proceedings, can also be generally followed for criminal proceedings. Local Court In the Local Court, medico-legal reports are governed by section 32 of the Mental Health (Forensic Provisions) Act It is recommended that psychiatrists preparing medico-legal reports for use in criminal proceedings be familiar with Section 32. Section 32 requires the Magistrate to determine whether a defendant is suffering from a mental illness or suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person (within the meaning of Chapter 3 of the Mental Health Act 1990 (NSW)). A Magistrate is reliant upon the clarity of the information and medical opinion expressed in the medico-legal report. If the medical requirements of section 32 are satisfied the Magistrate may order that the charge(s) against the defendant be dismissed, either conditionally or unconditionally. The treatment provider may report any failure to comply with a court order (for example, a condition of treatment). It would be helpful if the treatment provider would also inform the legal practitioner who acted for the patient (defendant) of the non compliance. Please note that if a Magistrate rejects a section 32 application for dismissal of a charge, the charge is dealt with according to law. The legal practitioner can still raise the question of a defendant s fitness to be tried relying on a psychiatric medico-legal report. Higher Court In higher courts the legal concepts of unfitness for trial or not guilty due to mental illness still apply. However, under newly passed legislative amendments, the Mental Health Review Tribunal is now responsible for 4

5 determinations concerning the treatment, care, detention and release of persons who have been found not guilty by reason of mental illness or unfitness for trial. Psychiatric medico legal reports are required at the time of a trial or hearing and thereafter medico-legal reports would be required at the time of the Tribunal s regular patient assessments. The new amendments are likely to result in patients being released earlier into the community under community treatment orders, than under the pre-amendment procedures. Medico-legal reports generally 4.3 When requesting a medico-legal report, a legal practitioner should set out clearly the information and issues which he or she wants the medical practitioner to consider and state any specific requirements of the medicolegal report including compliance with such expert witness code of conduct as may apply in the court or tribunal in which the claim is made. 4.4 The legal practitioner should also: Clearly identify the patient by name as well as by date of birth In the case of referral to a non-treating specialist medical practitioner, and especially when the referral is for the opinion of a psychiatrist, neurologist or consultant in rehabilitation medicine, do his or her best to ensure that the patient understands the type of medical practitioner to whom the patient has been referred and whether the purpose of the referral is to provide a medico-legal report for the patient s own legal practitioner, for the other party s legal practitioner or for a joint report Do his or her best to ensure that the patient takes with him or her any relevant imaging and other relevant investigatory reports he or she may have Include with each report request the client s authority, or forward an authority from the patient allowing the medical practitioner to supply the report In the case of referral to a non-treating specialist medical practitioner and especially when the referral is for the opinion of a psychiatrist, arrange for the attendance of an independent accredited interpreter (not being a relative of the patient), fluent in the patient s language/ dialect and of an appropriate gender In the case of referral to a non-treating specialist medical practitioner, consider providing to the patient a copy of the medico-legal assessment information leaflet entitled Understanding Medico-Legal Examinations prepared by the Law Society of NSW and AMA (NSW), or equivalent information. 4.5 A medico-legal report should include a statement of: 5

6 4.5.1 The patient s date of birth and the history of the patient relative to the condition or injuries alleged to have arisen out of the incident/accident, along with a history of treatment which the patient underwent The present condition from which the patient is suffering The results of any examination/s of the patient by the medical practitioner Any special diagnostic report including imaging, pathology, ECG and EEG or other relevant reports The diagnosis of the patient s condition The prognosis of the patient s condition If asked to do so in relation to a claim of alleged medical negligence, his or her opinion in relation to whether the treatment and/or advice given departed from proper professional standards having regard to relevant definitions and terms of legislation and other matters of law as explained by the referring legal practitioner Acknowledgement of compliance with such expert witness code of conduct as may apply in the court or tribunal in which the claim is made, if appropriate. 4.6 The medical practitioner should direct his or her attention to the requirements of the expert witness code of conduct and to the questions asked by the legal practitioner, which may for example include the following: Whether in his or her opinion it is more probable than not that the condition or injuries were caused by the incident/accident Whether the patient s condition has stabilised or whether there is any prospect of further improvement or deterioration Whether there is any residual disability and, if so, the extent of such disability Whether any further medical or other treatment is indicated and, if so, the probable outcome of such treatment and, if possible (and usually only with procedural specialities), an assessment of the cost of that treatment and the period for which the patient will be unfit for work and/or hospitalised as a result of any such treatment Whether the patient is fit for any work and, if so, what type of work and whether part time or full time If the patient is unfit for work, the cause of his or her loss of capacity for work, the extent to which he or she is incapacitated, and whether or not such incapacity arises from the incident/accident Where it is alleged that a pre-existing disease or condition has been aggravated, the extent to which the aggravation is continuing, and the 6

7 effect of the aggravation on the patient s ability to work. If the medical practitioner considers that disease or degeneration may occur in the future, this should also be included in the report If asked to do so in relation to a claim of alleged medical negligence, whether the treatment and/or advice given departed from proper professional standards having regard to relevant definitions and terms of legislation and other matters of law as explained by the referring legal practitioner. 4.7 A request by a legal practitioner to a medical practitioner for the provision of a medico-legal report should be made direct by the legal practitioner to the medical practitioner. It is not appropriate for the client to be referred back to his or her general practitioner with a request for a referral to a specialist when the purpose is to obtain a medico-legal report. An appointment for a medical examination should be made by telephone and subsequently confirmed by letter from the legal practitioner. Except when necessary to maintain the client s legal and medical interests, the appointment should be arranged with sufficient notice so as not to cause disruption to the medical practitioner s schedule. The medical practitioner should make sufficient appointment times available to avoid undue delays in obtaining a suitable appointment for a medico-legal examination. Nor is it appropriate for a legal practitioner to encourage the client to consult a medical practitioner upon the pretext that the consultation is for treatment, when in fact the true purpose of the consultation is to obtain a medico-legal report. It should be remembered that many medical practitioners intentionally limit the number of clients they accept on referral from lawyers for medicolegal purposes. This is because it is necessary to have sufficient time available for patients who require treatment. Some medical practitioners have resolved not to take medico-legal clients unless the client is an existing patient for treatment purposes. This is the medical practitioner s prerogative. 4.8 There will be occasions on which it becomes necessary to arrange an appointment for a medical examination at short notice. In such cases, reciprocal co-operation by both legal practitioners and medical practitioners is absolutely essential. The legal practitioner should give the medical practitioner as much notice as possible and the medical practitioner should be understanding about circumstances in which such urgent requests may arise. 4.9 Upon receipt of a request for a medico-legal report and the original signed authority from the client (expressly authorising the provision of a medico-legal report), the medical practitioner should supply the report within a reasonable time, normally within 14 days. If the medical practitioner is of the view that there is a need for further time in supplying the report, or that there are good reasons for not supplying the report, he or she should promptly inform the legal practitioner of his or her view and the reasons for the need for further time or why he or she does not propose to provide the report When a medical practitioner-patient relationship already exists, information about the patient should not be divulged by the medical practitioner, except in answer to a subpoena or upon receipt of a signed authority from the patient. This guideline is subject to paragraph 8.7 dealing with client legal privilege. 7

8 4.11 In litigation, a medico-legal report serves two purposes. First, it is a statement of facts by the medical practitioner of the history given and his or her observations. Second, the report contains the medical practitioner s expert opinion. Once tendered as evidence in the court case, the report provides the Judge with material upon which to make findings as to the nature and extent of the condition or injuries and their effect upon the injured person. In cases of alleged medical negligence, the report provides the Judge with material upon which to make findings as to whether the treatment and/or advice given departed from proper professional standards having regard to relevant definitions and terms of legislation and other matters of law The report should be couched in descriptive, narrative terms. A medical report is a vital part of the legal practitioner s service to his or her client and is essential for the proper presentation of the case in court. The way in which the report is expressed may have a significant bearing on the claim/court case. Medical practitioners should provide medico-legal reports which are accurate, comprehensive and fair A report which does not address the legal practitioner s letter or which is terse, uninformative, lacking in detail or ambiguous may well not be of assistance to the court. It may increase the likelihood of the medical practitioner being called to give evidence to supplement or clarify the report The medical practitioner should refrain from expressing an opinion about matters in respect of which he or she is not qualified to express an opinion Until the patient s written consent and the legal practitioner s agreement are obtained, a patient referred by a legal practitioner to a medical practitioner for the purposes of obtaining a medico-legal report should not be the subject of further investigation or treatment. Normally any previous imaging, or pathology reports and other reports are made available to the medical practitioner by the patient or the referring legal practitioner and they will be adequate in many cases. However, if a qualified non-treating specialist considers that further imaging, pathology tests or other reports are necessary, he or she shall obtain from the legal practitioner authorisation to arrange for such extra tests etc. And the legal practitioner should accept responsibility for payment in accordance with the principles set out in Section It is inappropriate for a medical practitioner to express an opinion, either direct to the patient or in his or her report to the legal practitioner, concerning purely legal aspects of the case and, in particular, the amount of damages that the patient may recover as a consequence of the condition or injuries. The amount of damages that may be awarded by the court will be determined by a number of matters. Just as it is the medical practitioner s sole province to express opinions about the nature and extent of the patient s condition or injuries after a full and thorough examination, so too is it the legal practitioner s sole responsibility to express a considered opinion on legal matters based upon the whole of the material. Ultimately, of course, it is a matter for the court or tribunal to determine both liability and quantum. 5. PAYMENT OF MEDICO-LEGAL FEES 8

9 5.1 Notwithstanding that the strict legal responsibility for payment of a fee for providing a medico-legal report rests with the client, it is the view of the Law Society Council that, where a legal practitioner arranges for a patient to be medically examined and the medical practitioner furnishes a proper report of his or her findings and opinion, the legal practitioner is responsible for payment of the medical practitioner s proper fee for that service unless arrangements have been made with the medical practitioner for the medical practitioner to seek payment from the client. 5.2 The legal practitioner should contact the medical practitioner at the outset so that the fee for provision of the medico-legal report is agreed prior to the supply of the report and so that any fees associated with imaging or similar testing can be advised to the legal practitioner. Notwithstanding that the strict legal responsibility for payment for the report rests with the client, the Law Society Council is of the opinion that, when a report is requested by a legal practitioner, the legal practitioner should accept responsibility for payment unless arrangements have been made with the medical practitioner for the medical practitioner to seek payment from the client. The legal practitioner should therefore be prepared to pay for the report from his or her general account, or alternatively, to either obtain funds from the client prior to requesting the report or arrange for legal aid to cover payment unless other arrangements have been made beforehand with the medical practitioner. 5.3 If a client fails to attend a medico-legal appointment, or the appointment is cancelled with less than 2 working days notice, the legal practitioner should accept responsibility for payment of any cancellation fee unless arrangements have been made with the medical practitioner for the medical practitioner to seek payment from the client. 5.4 Before the expense of further diagnostic investigation for medico-legal purposes (including imaging, pathology, ECG, EEG, psychometric or other testing required or recommended by a treating medical practitioner) is incurred, that is other than the expenses already advised to the legal practitioner as referred to in paragraph 5.2, the legal practitioner s permission should be obtained to have such investigation carried out and to enable the legal practitioner to obtain sufficient funds to cover such additional expense. 5.5 Subject to paragraph 5.7, a medical practitioner may request prepayment of the recommended or agreed fee for the preparation of a medico-legal report. Where the legal practitioner requests a report and the medical practitioner does not request pre-payment, unless arrangements have been made beforehand with the medical practitioner, the legal practitioner should either: have funds in his or her trust account sufficient to pay the fee; or be prepared to bear the cost from his or her general account. If, following a request by a legal practitioner for a medico-legal report, the legal practitioner notifies the medical practitioner that the report is no longer required, the fee is payable if the report has been prepared. If the report has not been prepared but the examination has been conducted, a reasonable fee is payable for the work done. 9

10 5.6 If there is a regulated maximum fee for medico-legal work, the legal practitioner should make that clear to the medical practitioner. 5.7 If in relation to medico-legal work the medical practitioner proposes to charge a fee greater than the fee allowed for in the Schedule to this Restatement, the medical practitioner should discuss the matter with the legal practitioner before the service is provided. In this way, the basis for charging can be agreed as envisaged by paragraph 5.2. In the absence of such discussions or agreement it is suggested that the fee shall be: in accordance with the Schedule to this Restatement; but if the parties do not agree to adopt the fee(s) suggested in the Schedule to this Restatement, or if the parties have not discussed the matter, then any dispute will be determined in accordance with ordinary principles of law. 5.8 The legal practitioner is not liable for payment of the treating medical practitioner s treatment fees, unless an appropriate and irrevocable authority has been received from the patient to receive any verdict or settlement monies and to pay any such outstanding treatment fees. It is not appropriate for a medical practitioner to withhold a medico-legal report that he/she has agreed to provide and which has been prepared until treatment fees are paid. 5.9 The legal practitioner should make reasonable enquiries to ascertain the extent of treatment and other medico-legal expenses outstanding before undertaking negotiations for settlement or proceeding to hearing. 6. HEARINGS 6.1 Medical practitioners should be aware that in the Supreme Court of NSW all expert evidence is to be given concurrently unless there is a single expert appointed by the court, or the court grants leave for expert evidence to be given in an alternate manner. Concurrent evidence means two or more expert witnesses giving evidence at the same time. Concurrent evidence can also take place in courts other than the Supreme Court of NSW and in tribunals. 6.2 When fixing a matter for hearing, the legal practitioner should first enquire from the medical practitioner, whom he or she intends to call at the hearing, as to the days on which he or she will be available to attend court, and also as to any period during which he or she will not be available. 6.3 When the matter has been fixed for hearing, the legal practitioner should immediately inform the medical practitioner of the projected hearing date and that his or her attendance will be required in court or to be available to give evidence by video link or telephone link, if permitted by the court. It is, however, noted that in many instances the legal practitioner will not know the exact date or time when the hearing will commence due to the nature of court listing and the length of hearing of other cases. A subpoena for the attendance of the medical practitioner at the hearing should be served in accordance with the court rules. If the court has ordered the medical practitioner s evidence to be given by video link or telephone link, details of 10

11 the order and link location shall be provided by the legal practitioner to the medical practitioner. 6.4 On the afternoon of the day immediately preceding the hearing day, if possible, after the List Clerk has been contacted to ascertain the position of the case, the legal practitioner should again contact the medical practitioner to ascertain the most suitable time for attendance to give evidence and, if possible, to advise the approximate time when he or she will be required to give evidence. 6.5 The legal practitioner should assist the medical practitioner by calling him or her, if possible, at a time which is convenient and which would require the minimum period of absence from his or her practice. Efforts should be made to have the medical practitioner s evidence taken as soon as possible after arrival at court. 6.6 Medical practitioners should be aware that a requirement for concurrent evidence creates practical difficulties for a legal practitioner in coordinating a mutually convenient time for all of the experts to give their evidence together. Medical practitioners are asked to be understanding about this and cooperate with each other and with the legal practitioner in the making of these arrangements. 6.7 A requirement for concurrent evidence usually also requires the medical practitioner, in the immediate lead up to a hearing, to attend a joint conference with the other experts qualified in the matter who will give their evidence concurrently, assist with preparation of a joint report for the court arising out of the joint conference, and to attend conference(s) with barristers and the legal practitioner. 6.8 Medical practitioners should discuss with the referring legal practitioner whether there is a likelihood that they will be required to give evidence concurrently (or otherwise) and the pre hearing procedures associated with the giving of concurrent evidence, and be aware of the more limited flexibility as to the appointed time for their attendance at court (if required) given that several experts must attend at the same time. 6.9 If a case is settled, or if the legal practitioner becomes aware that the medicolegal evidence for any other reason will not be required, he or she should so notify the medical practitioner as soon as possible Fees for standby, cancellation or attendance at court should be disclosed by the medical practitioner to the legal practitioner and, where possible, agreed in advance. 7. RESOLUTION OF DISPUTES 7.1 It is inevitable that from time to time disputes will arise between medical practitioners and legal practitioners. It is irrelevant whether such disputes are caused by misunderstandings, ignorance or personality conflicts. 7.2 Legal practitioners and medical practitioners are encouraged to resolve any such disputes by courteous professional discussion. If resolution cannot be 11

12 achieved, legal practitioners and medical practitioners are encouraged to seek the assistance of their respective professional bodies in the resolution of disputes. 8. ACCESS TO MEDICAL INFORMATION 8.1 A medical practitioner is obliged by the Medical Practice Act and Regulations to keep detailed and contemporaneous records of observations and other relevant information obtained at each consultation with the patient. 8.2 Such records are confidential between the patient and the medical practitioner and subject to privacy laws, but are not subject to client legal privilege. Accordingly, a medical practitioner s notes must be produced to the court if subpoenaed. Sometimes the medical practitioner s notes will contain sensitive material about the patient which, if seen by, or told to, the patient in the absence of appropriate explanation or counselling, may lead to the patient becoming anxious, distressed or angry. In turn, this could damage the therapeutic relationship between the medical practitioner and the patient. As a courtesy to patients, and to preserve the therapeutic relationship, it is suggested that medical practitioners contact patients to advise when the patient s records have been subpoenaed and must be produced. In cases where counselling or explanation of material in the records is thought to be necessary or appropriate, medical practitioners should arrange to see the patient for the purposes of such counselling or explanation. Medical practitioners may also wish to advise the patient to seek further guidance from a legal practitioner in relation to legal options available to suppress contents of the records. 8.3 From the medical practitioner s perspective, it would be preferable if legal practitioners postponed consideration of whether or not to issue a subpoena until after there has been a full exchange of medico-legal reports. From their point of view, the primary method by which medico-legal information is obtained should be by way of a properly prepared report. Where the necessary information is not disclosed by the report, it may then be appropriate for the legal practitioner to issue a notice or subpoena ( subpoena ) for the production of further records (for example, hospital records, medical practitioner s notes etc) as a means of putting the relevant evidence before the court. It is noted that in cases of alleged medical negligence, however, access to and consideration of clinical records, rather than a report in relation to same, is of paramount importance in relation to liability issues. 8.4 If the subpoena requires production of documents only and does not compel the witness to attend personally, the medical practitioner may comply with the subpoena by delivering the documents to the Registrar of the court together with a copy of the subpoena. In some courts and tribunals, copies of documents may be produced as an alternative to production of originals without the need for communication with the legal practitioner who has had the subpoena issued. If so, the subpoena will include information to this effect. If such information is not included, the medical practitioner may wish to discuss with the legal practitioner whether copies of documents, rather than originals, will suffice. It is noted that a copy 12

13 of the patient s record must always be retained by the medical practitioner in order to meet his/her legal obligations under the Medical Practice Act. If prior agreement has been reached with the legal practitioner who has had the subpoena issued, the medical practitioner may send certified copies of the documents required to be produced. Where photocopies are provided the medical practitioner may send a covering letter stating: Enclosed with this letter are all documents within my possession, custody or control required to be produced in answer to the enclosed subpoena. Where photocopies are provided the copies are an accurate, legible and complete reproduction of the original. Where photocopies are provided the original will be retained by me until the conclusion of the case. 8.5 If the above procedure is followed there should be no objection to the solicitor accepting photocopies in lieu of the original notes. Clinical notes are frequently required for the ongoing care of the patient. From the medical practitioner s point of view, it would be preferable if the originals were retained by the medical practitioner. If the medical practitioner is required to produce the original notes to the court then, as stated above, a copy of the patient s record must always be retained by the medical practitioner. Usually the copying costs form part of the reasonable costs of complying with the subpoena. It should be remembered that the case may not be resolved immediately. Generally speaking, records produced in answer to a subpoena are retained until the case has been completed and the time for filing an appeal has expired. The documents should then be returned by the Registry to the person who produced the documents. 8.6 Documents provided by the medical practitioner to the court in answer to a subpoena should be retained by the court and not taken away from the court building, except as specifically approved by the court. Legal practitioners should treat the medical practitioner s notes and other documents produced in answer to a subpoena with care and respect, remembering that sensitive material carelessly disclosed to the patient might harm the medical practitioner-patient relationship or indeed the patient. Legal practitioners should also consider their obligations under federal and state privacy legislation and guidelines, in respect of the safe handling of medical records. Medical practitioners, on the other hand, should keep in mind that the legal practitioner s responsibility is to make available to the court all evidence which may be relevant to the issues before the court. As stated in paragraph 8.2, in cases where counselling or explanation of material in the records is thought to be necessary or appropriate, medical practitioners should arrange to see the patient for the purposes of such counselling or explanation. 8.7 There is a rule which provides that documents brought into existence for the purposes of prosecuting or defending an action are privileged (that is, they do not need to be disclosed to anyone (except in accordance with law), including the opposing party). Many medico-legal reports will fall into this category. A 13

14 good example is the case when a client is referred by a legal practitioner to a specialist for a medico-legal report where the report is to be used in proceedings. Information obtained during the consultation and in the report written afterwards, is privileged. The right belongs to the client and can only be waived by the client. Accordingly, it would be improper for privileged documents to be disclosed to anyone without the client s permission. 8.8 A medical practitioner who: is engaged by others (for example, a Commonwealth Medical Officer, a medical practitioner employed by the Australian Defence Forces, the Australian Federal Police or a medical practitioner employed by an insurance company); does not have the ongoing responsibility for caring for the patient; and does not have a written authority from the patient is not entitled to seek or obtain information from the patient s treating medical practitioner. Particular attention should be paid to the provisions of paragraphs 4.3 and 8.7 relating to patient authority and privilege. 9. RECOMMENDED MEDICO-LEGAL FEES AND EXPENSES 9.1 Clients pay to their legal practitioners legal costs which, by and large, are fixed by rules of the court. There are two types of costs, legal practitionerclient costs and party-party costs. Party-party costs are those costs payable by the unsuccessful party to the successful party and are intended to compensate the successful party for the proper costs incurred in and about the preparation and presentation of the case. Legal practitioner-client costs include all party-party costs and also other costs properly incurred by the legal practitioner in carrying out the client s instructions. 9.2 Any fee paid by a legal practitioner to a medical practitioner for medico-legal work is a disbursement (that is, a payment made by a legal practitioner on the client s behalf in and about the preparation and presentation of the client s court case). The court rules regulate what disbursements are allowable (that is, permitted to be recovered from the unsuccessful party). For example, a fee paid to a barrister is a disbursement The schedule of fees recommended by the Law Society of NSW and AMA (NSW) for medico-legal work on a legal practitioner-client basis is as set out in the Schedule annexed to this Restatement. The present Workplace Injury Management and Workers Compensation Act and Workers Compensation Regulation set maximum fees. Subject to what may be allowable under court rules, the Schedule is intended as a guide only as to the amount which might be a reasonable fee in the circumstances. 9.4 The recommended Schedule of fees for medico-legal work may be amended from time to time. Amendment shall be made no more frequently than once each twelve months. 14

15 SCHEDULE ALLOWANCES TO WITNESSES AND SUGGESTED FEES FOR MEDICAL EXAMINATIONS AND REPORTS 1 March 2010 Photocopying 1.1 Charges in respect of documents up to 33 pages, a minimum: $ Additional charges, where more than 33 pages are provided, per page: $1.20 Medico-Legal Reports 2. The following fees may vary depending on the complexity of the matter, the number of documents to be studied and the amount of research needed to give the medico-legal opinion: 2.1 Report made by an attending general practitioner: where a re-examination of a patient is not required: $ where a re-examination of a patient is required: $ Report made by an attending specialist: where a re-examination of a patient is not required: $ where a re-examination of a patient is required: $ Report made by a specialist who has not previously treated the patient: $1, $1, Where special circumstances are shown to exist, eg. where an extensive record is accompanied by the request for a report or where there are multiple attendances required such as in the case of psychiatric treatments, fees may be negotiated between the parties outside of the scale provided for above. 2.5 If a client fails to attend a medico-legal appointment, or the appointment is cancelled with less than 2 working days notice, a reasonable fee should be negotiated between the parties. 2.6 Where a request for a report is cancelled, the full fee is payable if the report has been prepared. If the report has not been prepared but the examination has been conducted, a reasonable fee for the work done should be negotiated between the parties. Allowances to Witnesses for Expert Evidence 3. Where a medical practitioner is called to give expert evidence: 3.1 Including travelling to Court, where period from departure from home, $1, hospital, place of practice, office of employment or other place to return thereto from attendance at Court does not exceed one and a half hours (minimum payment): 3.2 For every full hour after the first hour and a half or proportion thereof if $ not for a full hour: 3.3 Where teleconference facilities are made available, the amount payable shall be based on the Hourly Fee provided for in 3.2 above, charged on a scale of 5 minute increments for time spent giving evidence. 3.4 In special circumstances, a fee outside the scheduled fee may be negotiated. 4. Travelling and other allowances: 4.1 Payment to be made at the rate of $1.80 per kilometre one way after the first kilometre up to and including 80 kilometres. 4.2 Exceeding 80 kilometres the reasonable costs thereof plus the costs of reasonable accommodation and meals. 5. Where a medical practitioner is required to undertake preparation for appearance as a witness including reviewing records, reports and other documentation, this time shall be paid at the hourly rate prescribed in 3.2 above. Cancellation Fee 6. Where a medical practitioner is required to attend court and cancellation occurs, this time shall be paid as below in addition to non-refundable expenses incurred: 6.1 With less 2 working days notice of cancellation: $1, With more than 2 working days notice but less than 7 working days $ notice of cancellation: 6.3 In special circumstances, a fee outside of the scheduled fee may be negotiated. * Medical practitioners and solicitors are advised to record, in writing, an agreement as to the fees agreed to be paid before the provision of services. ** Maximum fees are provided under legislation for services provided to the Workers Compensation Commission, Motor Accident Authority and in criminal matters. These may vary from the above scale. *** The above fees apply in respect of attendances, examinations carried out and reports ordered after 1 March These fees shall be subject to review on or after 1 March **** The above fees are GST exclusive. 15