Part 8Independent medical advice

Part 8—Independent medical advice 117—Interpretation In this Part— medical question means a question about any of the following matters: (a) a permanent impairment matter; (b) the nature and extent of any hearing loss suffered by a worker; (c) any other matter that the Tribunal or a court considers should be subject to assessment or advice under this Part for the purposes of particular proceedings. Division 2—Appointment of independent medical advisers 118—Appointment of independent medical advisers (1) The Minister may appoint a medical practitioner as an independent medical adviser for the purposes of this Act. (2) For the purposes of appointing medical practitioners as independent medical advisers, the Minister must establish a selection committee comprised of persons— (a) nominated by the Advisory Committee (who may, but need not be, members of the Advisory Committee); or (b) nominated by 1 or more professional associations representing medical practitioners determined by the Minister, (with the number of persons to be nominated by each entity to be determined by the Minister). (3) A member of the selection committee will be appointed on terms and conditions determined by the Minister. (4) The proceedings of the selection committee will be— (a) specified by the Minister; or (b) to the extent that a matter is not specified under paragraph (a)—determined by the selection committee. (5) The selection committee will recommend medical practitioners for appointment by the Minister as independent medical advisers. (6) In connection with the operation of subsection (5), the selection committee must invite expressions of interest in accordance with the regulations. (7) Subsection (6) does not apply if the Minister is simply seeking the advice of the selection committee about whether a particular medical practitioner should be re‑appointed as an independent medical adviser at the expiration of a term of office. 119—Independent medical advisers A medical practitioner appointed under section 118 (other than to the selection committee) will be called an independent medical adviser for the purposes of this Act. 120—Related appointment provisions (1) A person appointed as an independent medical adviser will be appointed on terms and conditions, and for a term (not exceeding 3 years), determined by the Minister and, on the expiration of a term of office, is eligible for re‑appointment. (2) The office of a person appointed as an independent medical adviser becomes vacant if the person— (a) resigns by written notice addressed to the Minister; or (b) is removed from office by the Governor for— (i) breach of, or non‑compliance with, a term or condition of appointment; or (ii) mental or physical incapacity to carry out duties of office satisfactorily; or (iii) misconduct; or (iv) neglect of duty; or (v) incompetence; or (c) completes a term of office and is not re‑appointed; or (d) ceases to be registered as a medical practitioner under the Health Practitioner Regulation National Law; or (e) is convicted of an indictable offence or of an offence which, if committed in South Australia, would be an indictable offence; or (f) is sentenced to imprisonment for an offence. (3) A person appointed as an independent medical adviser is entitled to fees, allowances and expenses approved by the Governor. (4) The fees, allowances and expenses are payable out of the Compensation Fund. (5) An act of an independent medical adviser is not invalid by reason only of any defect in the appointment of a person. (6) No personal liability attaches to an independent medical adviser acting in good faith and in the exercise or purported exercise of powers or functions under this Part. Division 3—Referrals 121—Referral by Tribunal or court (1) The Tribunal or a court may, on its own initiative or an application by a party to proceedings before the Tribunal or court, refer any medical question or questions arising in proceedings before the Tribunal or court to 1 or more independent medical advisers specified by the Tribunal or court for inquiry and report. (2) In connection with subsection (1)— (a) the rules of the Tribunal or the court may specify when a medical question must be referred to 1 or more independent medical advisers; and (b) the selection of an independent medical adviser must be consistent with any principle or process prescribed by the regulations (including any process which determines which independent medical adviser should be used); and (c) different medical questions may be referred to different independent medical advisers as part of the same proceedings; and (d) to the extent that a medical question is referred to more than 1 independent medical adviser, any dispute between the independent medical advisers will be resolved in a manner specified or determined by the Tribunal or the court (as the case may be); and (e) the question or questions to be referred to an independent medical adviser will be framed by the Tribunal or court after inviting submissions from the parties to the proceedings. 122—Powers and procedures on a referral (1) An independent medical adviser to whom a medical question has been referred under this Division may— (a) consult with any medical practitioner or other health practitioner who is treating or has treated the worker to whom the proceedings relate (the relevant worker); and (b) consult with such other persons as the independent medical adviser thinks fit (including another independent medical adviser who has considered or is considering the same or another medical question that relates to the relevant worker); and (c) call for the production of such information (including medical reports, x‑rays and the results of other tests) as the independent medical adviser considers necessary or desirable for the purpose of determining the medical question; and (d) require the relevant worker to submit himself or herself for examination by the independent medical adviser. (2) Information (including confidential information) may be disclosed to an independent medical adviser under subsection (1) without the breach of any law or principle of professional ethics. (3) If a worker refuses to comply with a requirement under subsection (1) or in any way hinders an examination of the worker, the independent medical adviser may refer the matter to the Tribunal or the court (as the case may require). (4) If the Tribunal or a court, on a referral under subsection (3), considers that a worker has acted unreasonably, the Tribunal or court may, by order— (a) suspend the worker's rights to recover compensation or damages under this Act with respect to the relevant injury; (b) suspend the worker's rights to weekly payments, until— (c) the worker has complied with any requirements specified by the Tribunal or court; or (d) the Tribunal or court makes an additional order in relation to the matter. (5) Any weekly payments that would otherwise be payable during a period of suspension under subsection (4)(b) are forfeited by force of this subsection. (6) If a medical question relates to any matter that is relevant to the assessment of whole person impairment (including as to whether an impairment is permanent), the following principles are to be taken into account: (a) an assessment must not be made— (i) until there is evidence that the injury has stabilised; or (ii) unless— (A) the injury is a condition prescribed for the purposes of this subparagraph by a regulation made on the recommendation of the Minister (see subsection (6a)); and (B) any requirement prescribed by the regulations has been satisfied; or (iii) unless the injury is a terminal condition; (b) if a worker presents for assessment in relation to injuries which occurred on different dates, the impairments are to be assessed chronologically by date of injury; (c) impairments from unrelated injuries or causes are to be disregarded in making an assessment; (d) impairments from the same injury or cause are to be assessed together or combined to determine the degree of impairment of the worker (using any principle set out in the Impairment Assessment Guidelines); (e) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychiatric injury; (f) in assessing impairment resulting from physical injury or psychiatric injury, no regard is to be had to impairment that results from consequential mental harm; (g) in assessing the degree of permanent impairment resulting from physical injury, no regard is to be had to impairment that results from a psychiatric injury or consequential mental harm; (h) any portion of an impairment that is due to a previous injury (whether or not a work injury or whether because of a pre‑existing condition) that caused the worker to suffer an impairment before the relevant injury is to be deducted for the purposes of an assessment, subject to any provision to the contrary made by the Impairment Assessment Guidelines; (i) assessments are to comply with any other requirements specified by the Impairment Assessment Guidelines. (6a) The Minister must not make a recommendation to prescribe a condition for the purposes of subsection (6)(a)(ii)(A) unless— (i) 1 or more professional associations representing medical practitioners, including the Australian Medical Association (South Australia) Incorporated; and (b) the Minister is satisfied that the condition is— (i) serious and potentially life threatening if suffered by a person; and (ii) extremely likely to cause an ongoing deterioration of a person's health, such that the degree of impairment resulting from the condition is unlikely to stabilise for a significant period of time. (7) A number determined under the Impairment Assessment Guidelines with respect to a value of a person's degree of impairment may be rounded up or down according to any principle set out in the Impairment Assessment Guidelines. (8) Subject to the operation of the preceding provisions, an independent medical adviser may determine any medical question in such manner as the independent medical adviser thinks fit (including by adopting such processes and procedures as the independent medical adviser thinks fit). (9) An assessment by an independent medical adviser as to any of the following matters is to be taken to be conclusive evidence with respect to the relevant matter in proceedings before the Tribunal or court (as the case may be) unless the Tribunal or court, in the exercise of its adjudicative function, determines otherwise: (a) a permanent impairment matter; (b) the nature and extent of any hearing loss suffered by a worker. (10) The Tribunal or court (as the case may be) may, as it thinks fit, accept any other matter contained in a report furnished by an independent medical adviser as conclusive evidence for the purposes of proceedings before the Tribunal or court, or give any such matter such other weight as the Tribunal or court thinks fit. (11) Without limiting any other circumstance where it is appropriate to give reasons, the Tribunal or a court must— (a) when it makes a determination under subsection (9) in the exercise of its adjudicative function; or (b) when it decides not to accept any matter as conclusive evidence under subsection (10), give reasons for its determination or decision (as the case requires). (12) Information given to an independent medical adviser cannot be used in subsequent proceedings unless— (a) the proceedings are before the Tribunal or a court under this Act; or (b) the worker consents to the use of the information; or (c) the proceedings are for an offence against this Act. Division 4—Related matters 123—Provision of report (1) An independent medical adviser to whom a medical question is referred under this Part is to prepare a report (or participate in the preparation of a joint report) at the conclusion of his or her consideration of the medical question. (2) The report is to be in a form specified by the rules of the Tribunal or court (as the case requires) and must— (a) set out details of the medical question; and (b) set out the opinion of the independent medical adviser (or advisers) with respect to the question; and (c) set out the reason or reasons for the opinion; and (d) set out information about the documents and other reports that have been considered by the independent medical adviser (or advisers); and (e) set out any other matters that, in the opinion of the independent medical adviser (or advisers), should be considered or investigated. (3) The report must be furnished to the Tribunal or the court in accordance with the rules of the Tribunal or court within any period specified by the Tribunal or the court (as the case may be). (4) A report furnished by an independent medical adviser on a referral under this Part is admissible as evidence in proceedings before the Tribunal or a court (and will be received in evidence in accordance with the rules of the Tribunal or court). 124—Competency to give evidence An independent medical adviser is competent to give evidence as to any matter in a report furnished by the independent medical adviser (and any other relevant matter, as appropriate). 125—Further referrals The Tribunal or a court may, if it thinks fit, refer any matter (in the nature of a medical question or in connection with a medical question) back to an independent medical adviser who has furnished a report to the Tribunal or court for further report to the Tribunal or court (and then this Division will apply in relation to the reference as if it were a new reference of a medical question). 126—Staff and facilities The Minister must ensure that independent medical advisers are provided with any staff or facilities required to support the performance of their functions. 127—Recovery of costs The costs associated with independent medical advisers and any staff or facilities provided under this Part are payable out of the Compensation Fund.