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11.4.3 Delegates consideration of unsolicited medical advice


Medical reports provided by the client's representative are part of the case put on his/her behalf and the doctrine of 'natural justice' requires that the case put to the Delegate should at least be considered i.e. examined to assess its bearing on the case. Equally, the Delegate as the decision-maker is entitled to decide which of that material is relevant, credible, etc. and has an appropriate bearing on the final decision.

Delegates should therefore closely examine any unsolicited medical report to determine whether, given the issues listed above, it provides a suitable basis for making a decision on liability (i.e. in conjunction with the other medical material available).

In some cases the Delegate addressing supplementary questions (or requests for clarification) to that doctor may resolve minor matters of concern.

Naturally, where a report meets all of the above tests and the Delegate has confidence in that report, it should certainly be used in the decision making process. However, just as certainly, Delegates are not obliged to accept the substance of a medical opinion simply because it has been presented. Delegates have a responsibility to inform themselves of the medical issues, to decide the relevance and weight of each, and to exercise information gathering powers under the Act.

Therefore, where a Delegate is less than fully confident of the medical opinion favoured by the advocate, he/she should commission a new medical examination by a using the powers given by S57.

In advising the advocate of the decision to seek a further medical report i.e. form another doctor, Delegates may if they choose refer to any specific deficiencies of the unsolicited report but should be careful not to make any slur on the professional competence of the doctor.

Medical reports organised unilaterally by a client or advocate (i.e. without RCG soliciting such a report) are commissioned at a financial risk. Where the Delegate does not use that opinion in forming the liability determination, the doctors fee for that report remains a mere cost of putting a case to the Delegate, and is not refundable i.e. RCG is not obliged to pay for the report. Only where the Delegate has accepted the report (i.e. all of it or only part) as evidence bearing directly on the outcome of the liability determination, should RCG bear the cost of that report.

Naturally, payment/reimbursement for reports meeting these criteria should be delayed until after the liability determination has been issued.