LawSense Report Writing Essentials for Mental Health Practitioners

Key Insight for Writing Effective and Defensible Reports

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Program

12.00    LawSense Welcome

12.05    Chairperson’s Remarks

Dr Gary Banks, Principal Clinical Psychologist and Managing Director, Sydney Counselling Centre; Authorised Clinician, NSW Children’s Court; Approved Clinician (Family Reports and Single Expert Reports); Accredited Family Dispute Resolution Provider

12.10    Navigating Legal Rights and Obligations in Providing Reports/Assessments to GPs, Other Professionals, Insurers, NDIS & Other Agencies

Exploring Different Report Types

• Reviewing they kinds of reports practitioners can be called upon the provide, including internal reports, reports for other organisations or agencies for matter such as workers’ compensation, accident claims, NDIS or writing to GP’s

Examining Key Legal Requirements – Reports to GP’s/Other Professionals/Insurers

• Outlining matters to consider in writing internal reports, reports to other organisations, agencies and professionals, including:
  • requirements for reports to GP’s for Medicare, including where you disagree with the GP’s diagnosis
  • how your report could be used and limiting your legal exposure
  • privacy, confidentiality and patient/client consent including:
    • examining confidentiality and privacy and how it affects writing and sharing reports
    • understanding who can consent to release of information and what is required for legal consent
  • Exploring approaches to limiting or preventing the use or sharing of your reports

Reports for the NDIS

• Understanding the scope of work allowed for mental health practitioners under the NDIS and ongoing reform
• Reporting for NDIS – understanding requirements and exploring best practice

Report Examples

• Learning from case studies and examples

Malcolm Choat, Principal Therapist and Psychologist, Astra Psychology; Former Mediator and Lawyer

1.10      Break

1.25      Providing Reports for Courts and Dealing with Cross-Examination – How Reports Have Come Unstuck?

Treatment Versus Assessment Reports

• Examining the role of the treating practitioner providing a report, versus an independent assessment, including the practitioner “advocating” for a client/patient
• Examining duties to the Court in writing reports
• Understanding requirements where you express an expert option, rather than just outline historical treatment:
  • following the Expert Witness Codes of Conduct
  • Makita (Australia) Pty Ltd v Sprowles – legal requirements for expert reports:
    • “Expert” with “specialised knowledge”
    • specified training, study or experience
    • opinion “wholly or substantially based on the witness’s expert knowledge”;
    • proper basis for the opinion
    • showing demonstration and criteria of the analysis and how conclusions are formed.
  • Expert” with “specialised knowledge” – exploring when a mental health practitioner can be considered an “expert” in a particular area
  • Dealing with requests/suggestions by lawyers to change report content, including lessons from New Aim Pty Ltd v Leung [2022] FCA 722

Privilege and Reports for Courts or Tribunals

• Examining different types of privilege and how it can apply to your report:
• Examining when privilege is waived

Understanding Court Processes and Expectations: Producing Files or Documents and What the Court Expects of Witnesses

• Reviewing common Courts and Tribunals practitioners may interact with
• Understanding key court processes – evidence in chief, cross-examination, re-examination and submissions
• Producing files and documents to the Court – examining your obligations and the extent of your rights to limit or prevent disclosure

Responding to Reports from Opposing Practitioners – How Does the Court Navigate Contradictory Opinions?

• Understanding how a Court considers and weighs up evidence from experts, including contradictory reports

Exploring How Reports Have Been Opposed or Discredited in Court Proceedings

• Learning from case studies – what aspects of reports have been criticised or attacked including:
  • lack of specific qualifications or experience relevant to the issues
  • the evidence used for your diagnosis, treatment or opinion.
  • when can you express concerns in reports or identify issues without direct evidence, or comment on parties you have not directly assessed/treated?
  • selection and use of testing
  • assumptions made or reflected in the report
  • advocacy or lack of independence
  • evidence adduced from other experts
• Learnings from cases including Perrett-Abrahams v Psychology Board of Australia [2017] VCAT 877:
  • alleged unsatisfactory report including the lack of a brief treatment history of the client, identification of sources for opinion/conclusions, failure to use objective and/or impartial language and/or distinguish fact from allegation and opinion
  • advocating in reports

Dealing With Cross Examination

• Effectively preparing for cross examination, including dealing with solicitors and barristers
• Understanding what the Court expects from you in cross examination
• Asking questions of the cross-examining lawyer in Court to clarify questions or assumptions being put to you
• Succinctness versus “oversharing”
• Tips for dealing with cross-examination and re-examination

Edward Smith, Partner, Wotton & Kearney

2.25      Break

2.40      Exploring Best Practice Drafting and Structure of Treatment Reports for Courts or Tribunals

• Examining key elements of effective and defensible treatment report:
  • understanding the role of the report and navigating providing a treatment report versus and assessment report
  • structuring the report, to ensure clarity and admissibility in Court
  • including relevant observations and evidence and dealing with hearsay
  • the extent and type of data you should rely upon and specifying any assumptions
• Dealing with the opinions of other practitioners that you disagree with
• Learning from case studies and examples – what is a “good” report versus a “bad” report

Dr Tim Lowry, Clinical & Forensic Psychologist, Silverton Psychology Group; Statewide Program Coordinator: Forensic Liaison and Community Forensic Networks, Queensland Forensic Mental Health Service

3.25      Closing Remarks

3.30      Event Close

Presenters / panelists include:

	Malcolm Choat has an almost unique combination of career professions, fields of study and work experiences. Before he became a psychologist, Malcolm worked as a mediator and lawyer. He is a nationally accredited mediator. For more than 12 years, Malcolm has led and directed teams of psychologists. He has 5+ years of experience as a clinical supervisor, providing direction, support and training to intern psychologists. Malcolm’s qualifications include a First-Class Honours degree in psychology, a Masters of Clinical Leadership, a Bachelor of Laws and post-graduate qualifications in mediation and negotiation. He is registered with AHPRA as a psychologist and clinical supervisor. He is currently a PhD candidate, conducting research into the therapeutic alliance between psychologists and clients.
	Edward Smith practises solely in health law and represents medical and allied health practitioners in the full range of issues affecting the sector. Edward’s expertise includes litigated medical negligence proceedings, coronial inquests, regulatory and disciplinary matters, employment disputes and criminal proceedings. Edward has acted extensively for mental health clinicians and organisations, including defending psychologists in Tribunal proceedings by the Psychology Board of Australia, and acting for psychiatrists, psychologists, the Victorian Institute of Forensic Mental Health and North Western Mental Health in coronial and medical negligence proceedings.
	Dr Tim Lowry is a Clinical and Forensic Psychologist with master’s and doctoral degrees in clinical psychology from the University of Queensland, and has completed additional postgraduate training in forensic mental health, public health, and health services management. Tim possesses substantial experience in forensic mental health, psychological risk assessment, and intervention, having worked across both public and private practice settings over the past 24 years. For over 14 years he has been employed in the QLD Forensic Mental Health Service, QLD Health, with concurrent part time clinical and forensic psychology private practice seeing adults, couples, and adolescents, as well as offenders.

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