Independent medical experts (IMEs) are medical professionals who are contracted by third parties (often lawyers, insurers or courts/tribunals/regulators) to conduct unbiased independent assessments on a range of matters relevant to legal proceedings, such as the quality of care provided by a practitioner, the degree of injury suffered by a patient, or whether a patient’s injury was caused or contributed to by a practitioner’s alleged negligence. The responsibilities of IMEs differ from doctors in a usual therapeutic partnership. Since they offer information and analysis in areas beyond the court's expertise, their opinion is extremely important.
In many types of legal claims and notifications against health practitioners, independent medical expert evidence plays a crucial role in assisting courts or regulators to determine whether or not a practitioner provided healthcare to an appropriate standard and whether or not they breached the duty of care that they owed to the patient. Despite the absence of a traditional therapeutic relationship, IMEs owe duties to the patient being examined, the party commissioning the report and, importantly, the court or regulator if they will ultimately be considering the evidence provided by the IME. Balancing these competing duties and obligations can be challenging.
In this webinar, we will hear from an IME who will discuss the joys and challenges of this interesting area of medical practice. We will also hear from legal experts who will discuss the legal obligations of IMEs, drawing upon recent case law and the types of calls our medicolegal advisory service receives from IMEs.
Learning outcomes
At the end of this webinar, attendees will be able to:
- Describe the role of IMEs, the codes of conduct and core legal and regulatory issues that are likely to be on your mind if you are considering, or are new to, this type of work.
- Discuss common dilemmas faced by members who engage in IME work and how we might advise them to respond in different scenarios.
- Discuss how to mitigate your medico-legal risk if you work as an IME.
Q & A
Disclaimer
The materials provided are for educational purposes only.
Whilst all reasonable care has been taken in preparing these materials, including the accuracy of the information supplied, MIPS does not accept any liability whatsoever arising out of the use or reliance of the information provided.
*This article is relevant at the time of the publication date.
1: General FAQs about being an independent medical examiner:
Does MIPS cover independent medical examination work?
Yes, subject to the terms and conditions of the MIPS Indemnity Insurance Policy.
The definition of ‘Healthcare’ (in the 2023/2024 and 2024/2025 Member Handbooks) extends to “any health-related examination, report or opinion prepared by You at the request of a third party, such as a lawyer, insurer or statutory body”.
You should also be aware of some restrictions relating to the provision of overseas telehealth, where cover is excluded for telehealth where: both you and the patient are overseas; or the patient is in Australia but you are overseas for more than 120 days within a policy period; or you are in Australia but the patient is overseas for more than 90 days.
How do I know if I am an expert who can provide an independent medical opinion?
Generally speaking, the most important prerequisite is to be a specialist with the appropriate qualifications, skills, and experience in the area in which you are engaged to provide an opinion. This usually precludes junior practitioners or practitioners-in-training from holding themselves out as an expert.
In addition, to be an authorised assessor under some schemes, such as WorkCover or the Transport Accident Commission, a practitioner must undergo specific training.
If the matter involves legal proceedings and goes to trial, the Court will decide whether a witness is an expert, and (if there is more than one expert providing an opinion) which expert is preferred on a particular issue in dispute.
How do I negotiate fees for my time when I’m asked to attend Court?
You should negotiate fees with the party requesting your opinion or attendance in Court before attending. If you have any difficulties about payment, we encourage you to contact MIPS for medico-legal advice and support.
How do I protect myself from claims or complaints when undertaking independent medical examinations?
In the context of independent medical examinations, it is important to:
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Remain independent and not advocate for a party;
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Declare any conflicts of interest;
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Adhere to your professional obligations in relation to the individual you are examining;
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Ensure appropriate consenting with the patient for the purpose of the independent medical examination;
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Keep accurate and detailed records of consenting and the examination;
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Ensure that you provide expert opinion within your area of expertise only; and
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Adhere to the relevant expert witness code of conduct for your jurisdiction (see below).
What are the expert witness codes of conduct?
Australian courts and tribunals have established rules and obligations for experts who give expert evidence. Generally, if you are providing an opinion that may be used in court proceedings, the commissioning party will provide you with a copy of the relevant code. The following is a non-exhaustive list of some of these codes:
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Western Australia
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Northern Territory
What is the difference if approached by prosecution or defence? Should there be a difference in my approach or otherwise?
Your approach must not change depending on the commissioning party. You are acting as an independent expert and should always remain independent.
It is the role of the commissioning party to provide you with specific questions to answer, and it is your role to answer them truthfully and in line with your expertise.
What happens if it transpires that my opinion (for example, in relation to prognosis) was incorrect?
It is important to remember that you are providing an opinion only, and you should be able to justify your opinion with reference to the medical literature or your own experience. If another independent medical examiner disagrees with your opinion on prognosis, then the Court will decide which opinion it prefers.
Do I need to be registered with Ahpra to conduct an independent medical examination in Australia?
Yes. While you may not be treating the patient, you still owe professional obligations to the individual in which you are independently examining.
Do I need to quote the medical literature in my independent medical report? Is being an expert enough?
The concept of legal evidence is different to medical evidence and courts will rely on the opinions of experts in a field without the need for citation of medical literature.
However, citing the medical literature will strengthen the evidence that you provide because it will help you to justify the basis for your opinions.
Please consult the expert witness code of conduct for your opinion, which is likely to inform you of the content required to be included in your opinion.
A lawyer has asked me to examine a patient and provide an opinion that might be used in future court proceedings. To whom do I owe a duty – the patient, the lawyer, or the court?
Most commonly, an independent medical examiner will be engaged by an insurer (for example, in a WorkCover or Transport Accident claim); a lawyer (in a civil claim or criminal proceeding); or a Court may order an individual to be assessed.
In each situation, up to three relationships may be established.
First, there is a relationship with the patient, which gives rise to legal, professional, and ethical obligations, including obligations with respect to confidentiality and privacy.
Second, there is a contractual relationship with the commissioning party which creates an obligation to provide a report in exchange for remuneration. The member also has an implied obligation not to mislead (knowingly or otherwise) the commissioning party. This is relevant when you may not have the patient’s consent to include certain information in a report, or where a patient withholds information from you during an assessment.
Third, where a report is prepared for current or possible future legal proceedings, there will also be obligations owed to the Court, including those arising from various Expert Witness Codes of Conduct referred to above.
The obligations that flow from the relationship with a patient are generally more important (and usually override) any conflicting obligations that are created through the relationship with the commissioning party. However, the obligations owed to the Court are always paramount, as outlined in the Codes.
2. Some situations when independent medical examiners might require advice and assistance from MIPS:
During the assessment, the patient withdraws consent to the continuation of the assessment or the subsequent provision of any health information to the commissioning party
Suggested approach
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Terminate the assessment
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Create and retain any records in relation to the (limited) assessment, including the fact the patient withdrew consent and any reasons given.
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Not disclose health information about the patient to the commissioning party
It would not be unreasonable or a breach of the patient’s privacy to inform the commissioning party in general terms that the patient withdrew consent to assessment and/or provision of the report. It would be preferable not to give details that might involve disclosure of health information without the patient’s consent.
The patient’s decision to withdraw consent to the assessment or provision of the report may have implications for the patient’s legal claim. This should not be your concern. Instead, the patient should be directed back to the commissioning party or their own legal representative to discuss their decision.
Patient completes the assessment but wants to review the report before it is provided to the commissioning party
Suggested approach
The patient has a right to access health information about themselves pursuant to health records or privacy legislation in each state or territory, unless a lawful exception applies. For example, if disclosure of the report might give rise to a serious or imminent risk of harm to the patient or another person, then (in some jurisdictions) the report MUST not be disclosed to the patient.
Patient does not consent to the report being provided to the commissioning party
Suggested approach
The patient has a right to withdraw or refuse to consent to release of health information to the commissioning party, even after the report has been written. The report should not be provided to the commissioning party.
Patient requests to review the proposed report before it is released and does not consent to specific health information being included in the report
Suggested approach
This is the trickiest scenario. On the one hand, patients have a right to access health information about themselves and have a right to withdraw consent to release of health information about themselves to third parties. On the other hand, if patients are allowed to amend, redact, or dictate the contents of a proposed report, this may undermine your independence and prevent them from fully articulating the basis for their conclusions and opinions. It may also mislead the commissioning party if critical information is omitted.
Therefore, in most cases, it may be best for you to decline the patient’s request to amend a report and to give reasons why. If the patient does not consent to the report being released, then the report should not be released, as described above. The patient’s decision and reasons given should be documented in your clinical record.
There may be rare situations where specific discrete information may be amended or removed, such as a small factual error made by you (eg incorrect date of birth, or incorrect historical fact) or highly sensitive but seemingly irrelevant past medical information (eg. women’s health issues from 20 years prior to a workplace injury). In those situations, you should exercise discretion and may remove the information, provided that it does not influence their independence or the basis upon which they formulate their conclusions and opinions. It may be good practice to inform the commissioning party that the patient has been given the opportunity to review the report and that minor amendments to the final report were made that did not influence the final opinion.
You have assessed the patient, the patient declined to consent to the provision of a report (either in full or in part) and the commissioning party refuses to pay you for your time assessing the patient.
Suggested approach
If the commissioning party has already paid for the assessment and report (or a deposit for it) then this might need to be returned to the commissioning party, depending on the specific terms of any agreement. Often, there is no written agreement, in which case, it will come down to negotiation between the parties. It would be important for you to retain any supporting health records or appointment diaries, that show that the patient attended the rooms for assessment.
The member assesses the patient and has concerns about a serious or imminent risk to the patient.
Suggested approach
This is most likely to occur in the context of a psychiatric assessment. If you have concerns about the patient’s safety, then most health records legislation, including the Privacy Act 1988 (Cth), allows you to disclose health information without the patient’s consent in order to lessen or prevent a serious or imminent risk to the patient. In this case, this may be to police or emergency services, or to the patient’s regular treating practitioner.
Similarly, it may be necessary in some circumstances for you NOT to release a report to the patient or a commissioning party if they form a reasonable belief that doing so might give rise to a serious or imminent risk to the patient (or third party). This should be discussed with the patient and the commissioning party.
During the independent medical examination, the patient discloses information to you that makes you concerned that a child is in need of protection because of suspected abuse or neglect.
Suggested approach
The requirements for reporting suspected child abuse in each Australian jurisdiction can be found here . These obligations apply if you are a treating practitioner and an independent medical assessor.
The patient is an Ahpra-registered health practitioner, and you forms a reasonable belief that the patient has engaged in notifiable conduct (eg drug use in the workplace).
Suggested approach
An independent medical examiner is under the same mandatory reporting obligations as any other registered health practitioner because they are providing a “health service” to the patient, as defined by Section 5 of all versions of the National Law.
However, the independent medical examiner would be exempted from mandatory reporting of health impairment in WA, as would any other treating practitioner, under Section 141(4)(ca) of the WA version of the National Law.
For how long should I store records or reports collected for the purpose of preparing an independent medical examination report?
Suggested approach
An independent medical examination report would be considered “health information”. In Victoria , NSW , and ACT , health information must be retained for at least 7 years from the date of the last health service for adults and, for children, until they reach the age of 25 years. In other jurisdictions , information must be destroyed or de-identified if it is no longer needed for the purpose for which it was collected (ie. once a court case has settled or been decided and time limits for appeals have passed).
Am I able to video record an independent medical examination?
Suggested approach
You should obtain the consent of the patient before video recording any consultation, not just an independent medical examination. Failure to obtain consent may breach surveillance devices legislation in some states, and may be a criminal offence. Ideally, you should confirm a patient’s consent for recording verbally on camera at the commencement of the examination, and document their consent in the medical record.
You should clearly explain to the patient why you are recording the consultation and what will happen to the recording, including where, how and for how long it will be stored, and who will have access to it. A recording must be treated in the same way as any other health information, and must be stored securely in accordance with usual requirements for retaining health records.
Ideally, you should also discuss any plan to record the consultation with the commissioning party (ie. the insurer or lawyer requesting your opinion) as they may not want the consultation recorded because any recording may form part of the evidence available to the court.
MIPS resources
