In the Summer 2013 issue of PULSE, we discussed the Court of Appeal decision in Kocak v Wingfoot Australia Partners Pty Ltd & Ors1. In that the case, the Victorian Court of Appeal determined that the Medical Panel’s reasons for its decision in an Accident Compensation Act 1985 (Vic) (ACA) referral were inadequate and, therefore, constituted an error of law which gave grounds for judicial review.
In the recent case of Colquhoun & Ors v Capital Radiology Pty Ltd2, the Court of Appeal distinguished the role of a Medical Panel constituted under the Wrongs Act 1958 (Vic) (Wrongs Act), from that of a Panel constituted under the ACA. In doing so, it found that a Wrongs Act Panel was performing a medical, not a judicial, function and, as such, had no obligation at common law to give reasons for its decision.
The patient allegedly fell from a trolley during a radiological examination in April 2008. He suffered head and leg injuries and required a hip replacement. He died some 12 months later after suffering a major stroke. His wife and three children brought a claim against the defendant radiology centre seeking damages for psychiatric injuries on the basis that its negligence caused the patient’s death.
On 4 July 2010, the Medical Panel determined that the plaintiffs’ psychiatric impairment did not satisfy the threshold level. In each case, the Panel provided written reasons for its determination.
All four plaintiffs sought judicial review of the determination on the basis that the Panel had failed to adequately assess each plaintiff in accordance with the Guide for Evaluation of Psychiatric Impairments for Clinicians (GEPIC), and had also failed to provide adequate reasons for each determination.
At trial, the Supreme Court held that where there is no specific statutory obligation to provide reasons for a decision, an administrative tribunal, such as the Medical Panel, is not obliged to do so. Further, the Panel was not performing a judicial function.
The Court reviewed the reasons provided by the Panel in each case, and found that:
- they disclosed a discernible path of reasoning;
- the Panel had examined each plaintiff in accordance with the GEPIC;
- the Panel was not required to expressly deal with the detailed content of other medical reports submitted to it; and
- the Panel, properly, did not state the numerical components as part of its assessment of impairment.
On appeal, the Victorian Court of Appeal agreed that a Wrongs Act Medical Panel performs a medical and not a judicial function and, as such, has no common law obligation to give reasons for its decision. Nor is there a statutory obligation imposed on the Panel by the Wrongs Act to give reasons. The Panel’s obligation under the Wrongs Act is to provide a written determination, but no written reasons for that determination.
The Court discussed at length the functions of the Panel and noted that its members:
- must accord the claimant procedural fairness;
- must decide whether each claimant is telling the truth;
- may need to consider questions of causation; and
- have the power to compel attendance by the claimant’s medical practitioner (subject to the claimant’s consent).
However, these attributes were not distinctive of a judicial function.
Significantly, the Court held that the direction given by the Convenor that Medical Panels give written reasons for their determinations is beyond the scope of the power conferred on the Convenor by the Wrongs Act, and is therefore invalid. Accordingly, whilst the Panel may choose to provide written reasons for its conclusions, it is not obliged to do so. In this case the Panel had complied with the Convenor’s directions by providing reasons, and these reasons were adequate.
Takeouts from Colquhoun
The Court of Appeal’s decision tells us:
- a Wrongs Act Panel is performing a medical, not a judicial function and accordingly has no obligation at common law to give reasons for its decision;
- the Wrongs Act imposes no statutory obligation on the Panel to give reasons for its decision;
- the provisions of the Wrongs Act disclose a legislative intention that a Medical Panel provide a written determination on the medical question;
- the Parliament did not expressly intend to give statutory force to every direction of the Convenor, and the direction that Panels should give written reasons for their determinations is beyond the scope of the power conferred on the Convenor under the Wrongs Act and is, therefore, invalid;
- whilst the Panel may choose to provide written reasons for the conclusions it reaches, it is not obliged to do so;
- if a Panel chooses to give reasons for its decision, the form those reasons should take is set out in Schedule 5 of the Direction issued by the Convenor under s 28LZ(4) of the Wrongs Act. This requires only that the reasons should be written succinctly, in plain language and clearly reveal the Panel’s core clinical and other findings in the assessment process, but must not state the specific degree of impairment.
The plaintiffs have applied to the High Court for special leave to appeal this decision and, as the High Court recently agreed to hear an appeal in Kocak v Wingfoot in relation to ACA Panel reasons, we may not yet have the final word on its obligations in this regard under the Wrongs Act.
The decision will no doubt be welcomed by parties who have received favourable Medical Panel determinations, but found themselves nevertheless subject to judicial review on grounds of alleged inadequacy of reasons based on Kocak. Historically, Wrongs Act Panels have always provided lengthy reasons for decision and it remains to be seen whether, in light of the ruling in Colquhoun, reasons will continue to be routinely provided.
Should the Panel decline to provide reasons, it is open to a party to request them pursuant to s 8 Administrative Law Act 1978 (Vic), although such a request must be made within 30 days of notification of the decision.
We have not yet seen any changes to the Panel’s practises concerning the provision or format of reasons although it is early days yet.