What role does the expert report have in the investigation?
The expert’s opinion is critically important evidence that the Commission carefully considers when deciding what the most appropriate outcome of an investigation into a complaint should be. Possible outcomes include:
- terminating the investigation and taking no further action
- making comments to the practitioner
- referring the practitioner to the relevant professional council to take any relevant action under the Health Practitioner Regulation National Law
- referral of the complaint to the Commission’s Director of Proceedings to consider taking disciplinary action.
Expert opinion is particularly important in respect of clinical matters.
While expert opinion plays an important role in the decision to prosecute, the Director of Proceedings considers all relevant evidence when making legal determinations. If a complaint is ultimately prosecuted before the NSW Civil and Administrative Tribunal or a Professional Standards Committee (PSC), it is the role of the Tribunal or PSC to determine what the standard is, whether there has been a significant departure from the standard, and whether or not the conduct of the practitioner amounts to unsatisfactory professional conduct or professional misconduct. In reaching this decision, the Tribunal or PSC has regard to all of the evidence, including the expert report.
PSC hearings are only held for medical practitioners, nurses and midwifes. For all other registered practitioners, the relevant health professional council can hold a Board of Inquiry. Unlike the Tribunal or PSC hearings and decisions, Boards of Inquiry are not open to the public and decisions are not made public. However, experts may be required to attend and give evidence at such inquiries.
During a hearing before the Tribunal, a PSC or a Board of Inquiry, there may be expert reports tendered by the side of the practitioner complained about. This is not unusual, particularly in complex clinical matters. As the expert, you will have the opportunity to view such reports and comment on them, if required.
How are experts matched to the respondent in an investigation?
Experts are recorded on the Commission’s database within certain categories, including their specialities, whether they have experience in metropolitan or rural settings, whether their client base is primarily adults and/or children etc. Those categories are used when selecting a suitable expert for a particular case. The Commission always tries as far as possible to match the level of training or experience of the expert to the level of training or experience of the health service provider who is the subject of the complaint. An expert does not necessarily have to be a peer; there are occasions where the expert will be more qualified and experienced than the subject. For example, a registered nurse can provide an expert opinion regarding the conduct of an enrolled nurse; a senior staff specialist doctor may provide expert opinion about the adequacy of the conduct of a senior registrar or more junior doctor. The Commission does not task experts to give opinions on the conduct of more experienced and senior practitioners. For example, a junior registrar would never be tasked to provide an opinion on the conduct of visiting medical officer.
What information is the expert usually provided with when asked to prepare an expert report?
All relevant information will be provided to an expert. This may include medical records, relevant policies or guidelines, all responses provided by the health service provider and all statements by relevant witnesses.
At times, when reviewing the material provided by the Commission, you may feel that a certain document or piece of information is missing. If you ever think this, then please contact the Commission and discuss your concerns.
Is the expert reviewer provided with the complaint history and/or previous convictions of the practitioner?
The Commission is obliged to consider complaint histories and to investigate and prosecute complaints together as far as possible. This may include re-opening closed complaints. If there are a number of complaints about the same practitioner, you will be briefed on those complaints. General complaint histories, when matters are not re-opened, will not form part of your brief.
Can I take other prevailing circumstances into consideration when discussing what the appropriate standard is?
The role of the expert is to set out the relevant standard and to comment on whether or not the individual conduct of the practitioner fell below that standard and if so, whether it fell significantly below that standard. Usually, you are not asked to take any systemic circumstances into consideration; you are asked to look solely at the conduct of the individual. If necessary, the Tribunal or PSC will take any relevant circumstances, such as staffing shortages or other systemic issues into account when making their decision.
If the practitioner has raised certain issues in mitigation of their conduct, you will be provided with these statements and will be explicitly asked to consider whether or not this impacts on your opinion about the relevant conduct.
Only in exceptional cases would the background circumstances be taken into account. If you base your opinion on such exceptional circumstances, you need to clearly state this in your report and give clear reasons as to why this has an impact on your opinion.
Do I actually have to use the words significant departure? And why?
Yes. Unsatisfactory professional conduct and professional misconduct are defined in the Health Practitioner Regulation National Law. Section 139 B of the National Law describes unsatisfactory professional conduct as:
'Conduct that demonstrates that the knowledge, skill,or judgment possessed or care exercised, by the practitioner in the practice of the practitioners profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Section 139 E of the National Law defines professional misconduct.
The correct wording is absolutely crucial. Without the correct wording, the Commission can not determine what the appropriate outcome to its investigation should be. Usually, it will request a supplementary report from the expert.
What does significant departure actually mean?
The phrase 'significant departure' means 'not trivial', 'of importance' or 'substantial'. You should bear in mind that where you have stated that there has been a significant departure, the matter will in all likelihood be referred to the Director of Proceedings to determine to whether or not the complaint should be prosecuted in a disciplinary forum. If a decision is made to prosecute the matter, you will be called as a witness to give your expert opinion.
When I get asked to comment on the patient’s version and then the doctor’s version, am I expected to say which version I find most convincing?
No. Please do not tell us which version you prefer or which side you find more credible. Your opinion should only be whether the conduct, based on a particular account of events, constituted a departure from the professional standards and if so, whether it was a significant departure. You should refrain from telling the Commission what you think about the credibility of the witnesses, as this is a matter that the Tribunal, Professional Standards Committee or Board of Inquiry will consider, if the complaint is prosecuted. The letter requesting your opinion should make it clear, if there are differing versions of events you should express your opinion based on each of the different accounts. This may mean that your opinion may differ depending on which account you base it on.
If I see an inconsistency between someone’s statement or account and what is in the records, should I point that out?
Yes. It is not your role to decide the facts, but if you see that there clinical recordings or something similar that seems to differ from someone’s account of what happened you should point that out.
Can I assume something when it is not explicitely in the material?
No. If you cannot find what you need to know from the material we have sent you, ring the Investigation Officer who will assist you further. If it turns out that the evidence is not available, you will need to base your opinion only on the evidence you have. You can say something like: 'If it is found that that Dr A did X, then that would be a significant departure from the standard'. If it is found that Dr A did Y, the conduct would represent a departure but not a significant departure from the standard. If it is found that Dr A did Z, there would be no departure from the standard.' If in any doubt, contact the Investigating Officer for further advice.
Should I say that I think that the conduct is below the standard but not significantly below?
Yes. You should say clearly what the standard is and that you believe that the subject care, treatment or conduct is below, but not significantly below the standard. With this expert advice, the Commission will consult with the relevant professional council and consider whether or not the complaint should be referred to the council to take relevant action under the Health Practitioner Regulation National Law, such as performance assessment or counselling.
Is it sufficient to say that a guideline or protocol has been breached and that therefore it is clear that there has been a significant departure from the standard?
No. Even though it might be very clear that the conduct has breached a protocol or guideline or standard, you still need you to explain and articulate your argument as to why the conduct constitutes a significant departure from the standard reasonably expected. The breach of a guideline may be relevant, but a breach of guidelines does not automatically constitute unsatisfactory professional conduct and /or professional misconduct so you should never rely on such a breach as being prima facie evidence of a significant departure from standards.
What happens when I say that there was a significant departure from accepted standards?
The expert’s opinion is important information that the Commission considers when deciding what the most appropriate outcome of the complaint should be. Generally, if an expert expresses the view that there has been a significant departure from the standard, this suggests that the conduct amounts to unsatisfactory professional conduct and that the Commission may prosecute a complaint before a Professional Standards Committee.
If you express strong criticism, it suggests that the conduct of the practitioner is sufficiently serious to amount to professional misconduct and may ultimately lead to the practitioner being suspended or their registration being cancelled by the NSW Civil and Administrative Tribunal.
Please remember, it is the role of the Tribunal or PSC or Board of Inquiry to determine what the standard is, whether there has been a significant departure, and whether or not the conduct amounts to unsatisfactory professional conduct or professional misconduct. In reaching this decision, the disciplinary body has regard to all of the evidence, including the report you have provided.
Should I attach any additional material I used for my expert report?
Yes, please list any material you have considered in preparing your expert report. If you have referred to any information other than that provided to you by the Commission, please enclose a copy of this material with your report. When downloading or copying publicly available materials to attach to your expert report, you do not breach any copyright law if you ensure that any source you refer to in your report is appropriately referenced. Enclosing copies of all material you have referred to also ensures that the Commission has the correct version on which you based your opininion. This may be relevant, if the information changes at a later stage and the version you used for your report cannot be accessed anymore.
Should I send back all the material and documentation with my expert report?
No. Keep it just in case you are asked to provide additional information or in case you are required to give expert evidence if the matter is prosecuted. If it becomes clear that you will not be required as an expert witness, please call the Commission to check before destroying any material you had received in relation to the matter.
What happens, if the facts change in a case an expert has provided a report about?
In cases where the Commission becomes aware of new facts, it may ask you to provide a supplementary report. You are required to consider these new facts and to advise whether or not they change the view expressed in your original report.
Can an expert modify a report?
In cases where the Commission becomes aware of new evidence, it may ask you to provide a supplementary report. However, if you intend to change a report already submitted, please advise the Commission immediately.
Can experts stay anonymous during investigation or disciplinary proceedings?
During the investigation, the expert report is de-identified and then provided to the health service provider to seek their response.
During disciplinary proceedings, in accordance with the principles of procedural fairness, the expert report, including the name and qualifications of the expert reviewer, will be made available to the health service provider being prosecuted.
Are expert reviewers providing reports for the Commission and being expert witnesses in disciplinary proceedings protected from defamation claims?
Section 27 of the Defamation Act states that absolute privilege applies to all evidence given before a Tribunal, which means that this information cannot be used in a defamation claim. Schedule 1 of the Act states that absolute privilege also extends to expert reviewer reports as well as all other information given to or produced by the Commission in the course of its complaint-handling functions.
What are the confidentiality provisions an expert has to adhere to? Is it possible to discuss a case with another colleague when preparing an expert opinion?
It is an offence to improperly disclose any information relating to a complaint. As an expert engaged by the Commission, you have to adhere to the conditions of disclosure as set out in section 99A of the Health Care Complaints Act. In some circumstances you may discuss the matter with a colleague in a generalised, de-identified and hypothetical way. If you have had such a discussion, you should disclose this in your expert report. Please check with the Commission’s Investigation Officer if you are unsure.
When is there a conflict of interest? Could an expert provide a report about a person who they have met previously?
If you believe that there is or might be a conflict of interest, let the Commission know immediately. Meeting the person in a professional setting, (e.g. at a conference) does not necessarily preclude you from providing an objective report.
If you feel you cannot provide an objective report, or believe that a reasonable person would consider that there is a conflict of interest, you should not provide a report.
Can the expert report be forwarded to any third parties, including law enforcement agencies?
The Commission cannot be compelled to produce an expert report in any circumstances. Expert reports are not admissible in other Tribunals or courts without the consent of the author, complainant and respondent, as set out in section 30(4) – (6) of the Health Care Complaints Act.
How many expert opinions does the Commission get?
The Commission usually engages one expert reviewer during an investigation. The Commission may have used internal medical advice or internal nursing advice during its assessment process to identify whether there were any serious issues raised in the complaint.
The health service provider complained about is free to provide their own expert advice to the Commission, which will be considered. Where relevant, this advice may be provided to the Commission's expert reviewer. However, on other occasions, to ensure that the expert’s review is not unduly influenced in any way, it may not. Such decisions are taken by the Commission on a case by case basis.
What to do if I believe the practitioner is impaired?
If in the course of providing an expert report on a conduct issue, you reach the conclusion that the provider’s conduct may be the result of some impairment which has not been referred to by the Commission, you should contact the Commission's Investigation Officer to discuss the matter. Where impairment is raised as a serious issue, the Commission may refer the matter to the relevant professional council who can require the practitioners to be medically assessed.
Some general tips on writing reports
- Ensure that your expertise / qualifications / experience are adequate to complete the report.
- Adhere to the Commissions expert report template and expert report guidelines.
- Consider all relevant facts – list everything given to you or used by you in the preparation of your report.
- Clearly articulate and demonstrate the reasoning behind your opinion.
- Write the report as dispassionately as possible; a good expert is someone who is fair, balanced and objective.
- If you are uncomfortable with a particular timeframe, say so.
- If your report findings are clearly and thoroughly articulated you may not be called to give evidence before a disciplinary hearing.
Some tips on what to expect at the NSW Civil and Administrative Tribunal
- You will be questioned by the Commission’s legal representative.
- You will be questioned by the respondent’s counsel, who will, at times, challenge your opinion during cross examination.
- Your task is to respond to the questions, not to dispute the legitimacy of the question.
- Do not argue. It is acceptable to say 'I do not agree', but it is best not to get into a debate. If you do not agree with something put to you, you should still answer the question and also note your concern with the premise of the question.
- Be prepared to concede when appropriate.