LawSense Report Writing Essentials for Mental Health Practitioners

Key Insight for Writing Effective and Defensible Reports

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Program

10.00    LawSense Welcome

10.05    Chairperson’s Introduction

Dr Julianne Read, Forensic Psychologist and Co-Director, Keystone Psychology; Past Chair, APS College of Forensic Psychologists (Victorian Branch); current Board Approved Supervisor, AHPRA

10.10    Examining Legal Requirements for Defensible and Effective Reports – Reports for GPs and Other Professionals, Agencies, Courts

Outlining Different Report Types and Use by Organisations and Courts

• Reviewing key scenarios where report writing is undertaken:
  • internal reports, reports for other organisations or agencies for matter such as workers’ compensation or accident claims, or writing to GP’s
  • reports requested by the client for the purposes of Court or other proceedings
  • reports requested by the Court
• Exploring circumstances where a Court may rely on details of patient / client diagnosis and treatment from a treating practitioner
• Understanding how the Court may use a treating practitioner’s opinion
• Examining how Courts use independent assessment reports

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

• 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

Examining Key Legal Requirements – Reports for Court/Tribunals

• Duties to the Court in writing reports versus duties to your client/patient
• Examining the role of the treating practitioner providing a report, versus an independent assessment, including the practitioner “advocating” for a client/patient
• 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.
• 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 relevant to Court reports:
  • Professional Confidential Relationship Privilege
  • Privilege relating to communications for legal advice or litigation
• Exploring how a court may exercise its discretion with respect to privilege
• Understanding the limits of privilege – what does it cover?
• Examining when privilege is waived

Jayr Teng, Barrister, Victorian Bar

11.10    Break

11.20    Writing Effective Reports: Structure, Wording, Dealing with Evidence, Assumptions, Observations, Opinions and Summary/Conclusion

• Examining key elements of effective and defensible treatment and assessment reports:
  • structuring the report, to ensure clarity and admissibility in Court
  • including relevant observations, evidence and opinions and dealing with hearsay
  • dealing with statements or other witness evidence
  • the extent and type of data you should rely upon and specifying any assumptions
  • basing opinions on specialised knowledge
• 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 Susan Pulman, Director, Dr Susan Pulman & Associates

12.20    Break

12.30    Understanding How Your Report Could be Challenged, Optimising Court Appearances and Dealing with Cross-Examination

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?

• Reviewing how evidence is taken from expert witnesses
• Dealing with concurrent expert evidence – “hot tubbing”
• Understanding how a Court considers and weighs up expert evidence – learning from case studies

Exploring How Reports Have Been Opposed or Discredited in Court Proceedings and Dealing with Cross Examination

• 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
  • express concerns in reports or identify issues without direct evidence, or comment on parties you have not directly assessed/treated
• 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
• Effectively preparing for cross examination, including dealing with solicitors and barristers
• Understanding what the Court expects from you in cross examination
• Tips for dealing with cross-examination and re-examination

Tim Marsh, Barrister, Victorian Bar; President-Elect, ANZAPPL, Victorian Branch

1.25      Chairperson’s Conclusion

1.30      Event Close

Presenters / panelists include:

	Jayr Teng has specific expertise in all aspects of health law, mental health law and medical law including in the context of class actions, royal commissions, medical negligence claims, disciplinary proceedings, coronial inquests, regulatory crime and occupational health and safety matters. Jayr is a legal member of the Mental Health Tribunal and in that role, as presiding member of the relevant tribunal division, determines whether compulsory treatment under the Mental Health Act 2014 is appropriate. He also teaches health law at Monash University and was a senior registered nurse having practiced at both Alfred Health and TLC Aged Care.
	Dr Susan Pulman is a registered psychologist with more than 20 years of experience. She combines commercial and clinical knowledge having worked in major law and professional services firms as well as the public sector. She has expertise in child and adolescent development and previously held a position with the Children’s Hospital at Westmead. She holds endorsements as a Clinical Neuropsychologist and Forensic Psychologist and has been working with the legal profession for 15 years.
	While Tim Marsh practices in all areas of crime, he has a strong practice in mental impairment and disability law. His work at first instance and on appeal in this area have helped clarify and reshape how the Victorian Courts treat offenders with mental illnesses. In 2020, his advocacy in the decision of Brown v The Queen saw the 2017 case of DPP v O'Neill overturned, allowing courts to take personality disorders into account in sentencing.

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