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11.5.1 Points to consider re: consensus medical adviser - decision integrity


Although a consensus approach may indeed be an attractive option in many cases, Delegates should ensure the integrity of the decision making process by observing the following points:

  1. This situation generally only arises where the advocate is unhappy with the Delegate's choice of adviser. While agreement on an alternative doctor has some potential to limit disputes, the Delegate's chief concern should be his/her own satisfaction with the integrity of the medical advice. It is the Delegate not the advocate who is required under the Act to make the decision on liability, and thus only the Delegate who need be satisfied with the factual and medical evidence leading to that decision. While agreement over processes is desirable if this also accommodates the Delegate's interests, the nature of the liability determination process is, as an objective decision by one person and not, essentially, a consensual or dispute-resolution process.

In summary, the Delegate need not and should not 'compromise' unless entirely comfortable with the proposal to use a particular medical adviser.

  1. Delegates should not, ever, countenance any arrangement whereby it is the advocate who arranges the appointment and provides the 'letter of request' i.e. the instructions to the examining medical specialist. That it is the Delegate's (and not the advocate's) task to instruct the doctor, is non-negotiable. The role of the doctor is to advise the Delegate. It is therefore the Delegates role to give clear instructions and ensure that the medical adviser has been provided with:
  • a clear statement of the reasons for the examination, a schedule of the relevant questions to be answered and a brief on any other issue on which particular guidance is required
  • all background medical documents, including former medical specialist reports
  • a known history of service, and of this compensation case if appropriate
  • the verified facts relating to the circumstances of the alleged injury/disease.

The Delegate may of course invite the advocate to provide additional material to the doctor, but only providing that a copy of these documents goes to the Delegate as well.

  1. Agreement on the identity of the doctor should not proceed on the basis that the doctor is to be a 'medical referee' although this is a common description or assertion about the role used by advocates. This invalid identification of a 'referee' role implies that the doctor has powers of decision as if judging between two contentions on liability. In the first place, Delegates should resist any perception that they are actively contending – prior to the collection of all evidence – that liability either does or does not exist, i.e. that they have, prior to the receipt of all evidence, adopted a position that requires a 'referee' to moderate.

In other words, Delegates should not accede to the perception or assertion that they are merely a contending advocate from the 'contra' side of the liability decision and that the real power lies with a medical expert whose opinion has been agreed to be decisive. The goal of the advocate may be to 'set up' a situation where the Delegate has by agreement abdicated their powers of decision in favour of a third party, (i.e. one more acceptable the advocate than the Delegate). In fact, you as the Delegate are the decision-maker. A medical examination – if required – is to inform you, not any other party.