When a person is injured and claims damages for that injury, they will be required to undergo a medical examination. The findings of that medical examination are very important to form the basis of a case and will serve as evidence in a Trial. But how invasive can these examinations be? Who conducts the examinations? And at what point will a Court consider a medical examination to be unreasonable? In this article, we talk about the role of medical examinations and provide examples of where the Court drew the line on what was ‘reasonable’.
Why Medical Examinations Are Conducted
The purpose of an independent medical examination is to obtain an impartial opinion from an appropriately qualified expert on the various aspects of the Plaintiff’s injury. This can include the effect on earning capacity, the impact on activities of daily living, and permanent impairment.
The examination will include a clinical examination (in the case of a physical injury) and a mental state examination (in the case of psychiatric injuries). The expert also takes a full history from the Plaintiff, as well as addressing various questions included in the letter from the party who arranged the examination. Generally, an examination will take between one to two hours. The resulting report will serve as evidence at Trial.
Case Study – Slaughter V Harvey  QDC 156
In the case of Slaughter v Harvey, Mr Harvey (the Plaintiff) was seeking damages for an injury allegedly caused by Dr Slaughter’s (the Defendant’s) medical treatment.
Dr Slaughter was entitled to have Mr Harvey medically examined for the purpose of his legal claim.
Dr Slaughter requested Mr Harvey undergo a medical examination by a psychiatrist selected by Mr Harvey from a panel provided by Dr Slaughter. Mr Harvey refused to submit to an examination unless the following conditions were imposed:
- Mr Harvey be permitted to attend the examination with a support person, who would be present throughout the entire examination;
- Mr Harvey be permitted to record the examination by a voice recording device;
- no photograph of him be taken;
- the examination last no longer than 1.5 hours; and
- there be no invasive tests.
None of the doctors on the panel accepted all five of these conditions.
Mr Harvey argued the examination was unreasonable because the proposed doctors would not comply with his conditions. Dr Slaughter asked the Court to determine whether Mr Harvey’s conditions were reasonable.
Mr Harvey argued, in determining whether a proposed examination is reasonable, the parties and the Court must consider his personal circumstances. While a particular method of examination may be reasonable in some (even most) cases, it may be unreasonable to carry out an examination in the normal manner if his personal history and current needs require special consideration.
Of the five conditions, the Court responded as follows:
- A support person could not be present: The Court did not consider that an examination would be deemed unreasonable if a psychiatrist refused to allow a support person to be present in the room during the examination. In coming to this conclusion, the Court considered Mr Harvey’s particular past experiences, issues of trust, and the past practices of psychiatrists who had allowed a support person to be present during an examination. However, none of this additional information made it unreasonable for the psychiatrists on the panel to have a different view and method of examination.
- The examination could not be recorded: While Mr Harvey argued he would not be candid if the examination was not recorded, the Court noted that was a choice for Mr Harvey to make. The Court did not consider a psychiatrist refusing to allow Mr Harvey to record the examination to be unreasonable.
- The doctor could not take photographs: The Court held it was unreasonable for a psychiatrist to insist on taking a photograph if the examinee objected to them doing so. This is largely because Mr Harvey was expected to be the person who attended the appointment and, the psychiatrist’s request for a photograph was not a matter of clinical expertise or opinion.
- The duration would be longer than 1.5 hours: The Court found it reasonable for the total duration of the examination to last more than two hours if conducted over a number of sessions.
- Invasive tests would not be done (without consent): Dr Chalk (one of the experts on Dr Slaughter’s panel) advised Dr Slaughter’s solicitors he would not conduct any invasive tests without Mr Harvey’s consent. In light of this, the Court took the position that other psychiatrists on Dr Slaughter’s panel would take the same view and held that condition was not in issue. What is an ‘invasive’ test was not defined by the Court. However, the type of tests which may be considered ‘invasive’ are, for example, urine tests or blood tests which are used to confirm compliance with reported medication regimes or illicit substance consumption.
Overall, the Court found that it was unreasonable to insist a photograph be taken of Mr Harvey and for the session to last more than two hours without a break, or Mr Harvey’s consent to continuing. However, the remaining grounds (which had been refused by Dr Chalk) were not considered unreasonable by the Court.
The Court Application was ultimately adjourned for Dr Slaughter to make further enquiries with the remaining psychiatrists on the panel as to the first two conditions and whether the experts would agree to them. If they did not, and Dr Slaughter was unable to locate any alternative psychiatrists, Mr Harvey would not be obliged to attend the examination.
The key takeaway from this case is, while it is rare, it is not unheard of for the Court to determine what is (or what is not) a reasonable condition to impose during an independent medical examination.
It is important to keep in mind the Plaintiff’s rights to a reasonable examination, especially when dealing with particularly vulnerable Plaintiffs, whilst balancing the right for the Defendant to obtain forensically competent independent medical evidence.