Medical Assessor Code of Conduct

Personal Injury Commission Medical Assessor Code of Conduct

Purpose

1. This Code of Conduct is issued by the President of the Personal Injury Commission of New South Wales under section 16 of the Personal Injury Commission Act 2020 (PIC Act).
2. Medical Assessors are engaged in work of significant public service. They are responsible for the independent assessment of medical disputes involving citizens who have been injured at work or on the road, their employers and insurers.
3. This Code sets out principles of conduct and professional behaviour to guide Medical Assessors in the performance of their statutory functions and to promote discussion and awareness of issues of conduct.
4. This Code also informs Commission users about the values, principles and standards of professional conduct expected of Medical Assessors.
5. Compliance with this Code will enhance public confidence in the Commission and its processes and is an important aspect of the Commission meeting the objects of the PIC Act. It is also designed to promote collegiate, professional and harmonious relations among Medical Assessors.
6. This Code may be varied from time to time.

Definitions

7. The following definitions apply to this Code:
   1. AMA 4 and AMA 5 – mean the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4^th edition and 5^th edition respectively.
   2. Commission – refers to the Personal Injury Commission of New South Wales.
   3. Commission Rules and Procedural Directions – refers to the practice and procedure to be followed in proceedings before the Commission.
   4. Confidential information – materials and information, both printed and electronic, that are provided to Medical Assessors in the course of their duties for the Commission are confidential unless they are otherwise available in the public domain, such as on the Commission’s website. The Medical Assessor’s Practice Manual is a confidential document.
   5. Division Head – refers to the Division Head, Workers Compensation Division or Police Officer Support Scheme Division or Motor Accidents Division.
   6. Enabling legislation – refers to the workers compensation legislation, the Police Act 1990, Part 9B and regulations made under this part and the motor accidents legislation as defined in section 5 of the PIC Act.
   7. Medical Assessor – refers to all persons appointed as Medical Assessors for the purposes and functions specified in the enabling legislation.
   8. Member – refers to all Members of the Commission including Presidential, nonPresidential and sessional Members.
   9. PIC Act – means the Personal Injury Commission Act 2020.
   10. President – refers to the President of the Personal Injury Commission.
   11. Principal Registrar – refers to the person employed in the Public Service as the Principal Registrar of the Personal Injury Commission.
   12. Social media – websites and applications that enable users to create and share content or to participate in social networking.

Responsibility of the President and Principal Registrar

8. It is the responsibility of the President and Principal Registrar to assist Medical Assessors to comply with this Code and to perform their responsibilities as Medical Assessors, through the provision of appropriate training, leadership, advice and support.

Upholding the Objects of the PIC Act

9. The objects of the PIC Act are set out under section 3 and include:
   1. ensuring the Commission:
      1. is independent (s 3(a));
      2. is accessible, professional and responsive to the needs of its users;
      3. is open and transparent about its processes;
      4. encourages early dispute resolution (s 3(b)).
   2. enabling the Commission to resolve the real issues in proceedings, justly, quickly, cost effectively and with as little formality as possible (s 3(c));
   3. ensuring that the decisions of the Commission are timely, fair, consistent and of a high quality (s 3(d));
   4. promoting public confidence in the decision-making of the Commission and in the conduct of its Members (s 3(e)).
10. Medical Assessors are expected to perform their duties and conduct themselves consistently with these objects.

General Responsibilities

11. Medical Assessors have the following general responsibilities, both in their functions as a Medical Assessor and in their personal activities:
    1. to uphold the law, including being aware of and complying with legislation dealing with privacy, discrimination and corruption;
    2. to uphold high standards of ethics, integrity and honesty;
    3. to maintain high professional standards of conduct.
12. Medical Assessors should not provide advice to the claimant/worker about treatment or recommend a particular practitioner to provide treatment. If a Medical Assessor becomes aware of a life threatening circumstance during the assessment, such as a suspicious spot on the claimant’s skin, they may provide advice in relation to same.

NSW Government Core Values

13. In performing their duties, Medical Assessors should at all times strive to give effect to the following NSW Government core values:
    1. demonstrate core values of integrity, trust, service and accountability;
    2. support the Commission to deliver service excellence;
    3. gain trust and respect though independence;
    4. continuously improve the path to justice through innovation.

Personal Injury Commission Values

14. The Commission has in place its own core values which are specific to the work we do. Medical Assessors also strive to give effect to the following Commission values:
    1. People: We support our people, so we can deliver service excellence in personal injury disputes.
    2. Independence: We maintain our independence, gaining the trust and respect needed from all parties to deliver excellence in personal injury disputes.
    3. Continuous Improvement: We are committed to improving the path to justice through innovation and professional development.

Refer to A Guide to Standards of Conduct for Tribunal Members issued by the Administrative Review Council for further information.

Respect for the Law

15. Medical Assessors should demonstrate respect for the law in the performance of their functions, including demonstrating an awareness and understanding of statutory obligations, rules, procedural directions and procedural requirements imposed by the Commission.
16. Medical Assessors should also demonstrate respect for the law in their private lives.

Fairness

17. In exercising their functions, Medical Assessors must:
    1. abide by the principles of procedural fairness, including:
       1. ensure the injured person is given an opportunity to provide a history in relation to the injury and any subsequent condition;
       2. ensure that the injured person is presented with any inconsistencies noted in supporting material or observed during an examination, and is provided with an opportunity to explain those inconsistencies before drawing any conclusions;
       3. consider the submissions of all parties to the dispute;  iv. ensure the parties are given an opportunity to address any articles or research material that a Medical Assessor proposes to rely on.
    2. be aware of and address appropriately, any barriers which are likely to impede parties in presenting their case. Such barriers may include, but are not limited to, language, cultural background, lack of literacy, disability and self-representation;
    3. ensure medical assessments are based on examination, clinical judgement and review of investigations, reports and other relevant information;
    4. ensure all material contained in the referral is reviewed;
    5. ensure reasonable time is allowed to examine the injured person;
    6. not provide any opinion to the injured person about their claim, condition or treatment;
    7. be professional when commenting on the opinion of other clinicians.

Conflicts of Interest

18. Medical Assessors must conduct medical assessments in an impartial manner and withdraw from the assessment process where they are unable to do so.
19. Medical Assessors must advise the Principal Registrar, as soon as practicable, of any potential conflict of interest that may prevent them from performing their duties as a medical assessor. This includes any factor or change of circumstance that may give rise to a reasonable apprehension of bias. The Principal Registrar will advise how the Medical Assessor should proceed.
20. Medical Assessors must advise the Dispute Officer of any actual, potential or perceived conflicts of interest that relate to any allocated matter. This includes any factor that may give rise to a reasonable apprehension of bias.
21. Medical Assessors may seek advice and guidance from the Principal Registrar in relation to any potential conflict of interest or other issue in relation to undertaking functions as a Medical Assessor.
22. The Principal Registrar may keep a register of conflict-of-interest declarations.
23. Medical Assessors should:
    1. not accept a referral to provide a medical assessment of any person whom they have previously treated, assessed for the purpose of preparing a medico-legal report or been acquainted;
    2. not accept a referral to provide a medical assessment as an independent medical expert, where they previously assessed the injured person in their capacity as a Medical Assessor;
    3. not provide comment to the media on specific cases that are before the Commission for assessment or determination, or have been dealt with by the Commission;
    4. if providing comment to the media on a matter unrelated to their Commission functions and responsibilities, not identify themselves as a Medical Assessor;
    5. refrain from participating in any commentary, criticism or advocacy for change in relation to the PIC Act or its enabling legislation, unless as part of a review at the request of the President or other government agency;
    6. declare any close personal relationships or pecuniary interests that may give rise to a potential conflict of interest. Such declarations are to be made to the Principal Registrar and are to be treated with confidence.
24. As an independent expert, a Medical Assessor (not acting as a Medical Assessor) may provide an opinion; where the injured person has been assessed by a Medical Assessor, provided such opinion does not critique the medical assessment or medical assessment certificate of the Medical Assessor.

Independence

25. Medical Assessors are to perform their duties independently, free from external influence and free from fear of adverse consequences.
26. Medical Assessors should not allow themselves to be put in a position where their independence may be compromised or perceived to be compromised.
27. Medical Assessors must maintain their independence in the discharge of their duties. Notwithstanding any matter within this Code, Medical Assessors must satisfy themselves that no conflict exists in the discharge of their duties to the Commission.

Diligence and Timeliness

28. Medical Assessors are to be diligent and timely in the performance of their duties. They should take all reasonable steps to maintain and enhance the knowledge, skills and personal qualities necessary for the performance of their duties.
29. In particular, Medical Assessors are to:
    1. conduct medical assessments accurately;
    2. provide medical assessments and make decisions in a timely and appropriate manner with a view to ensuring that the process is efficient, effective and inexpensive;
    3. undertake and participate in professional development and Commission training programs to enhance relevant knowledge and skills;
    4. keep informed of developments in substantive and procedural matters within the jurisdiction of the Commission relevant to their duties;
    5. ensure medical assessments are consistent with legal authority, relevant Commission Rules and Procedural Directions and guidance material, or provide detailed reasons where they are not followed;
    6. support and encourage, where possible, the professional development of colleagues;
    7. ensure they are proficient in the use of technology including the Commission’s electronic case management system, digital provision of documents, the Commission’s intranet and extranet, conducting assessments by audio-visual link where appropriate, and other technological developments implemented by the Commission.

Integrity

30. Medical Assessors should act with honesty, fairness, respect and commitment.
31. Medical Assessors should:
    1. not knowingly take advantage of or benefit from information, not publicly available, obtained while performing their functions;
    2. not use their position as a Medical Assessor improperly to gain or seek to gain any advantage or benefit for themselves or any other person;
    3. be scrupulous in the use of Commission resources;
    4. refrain from conduct which would bring the Commission and/or Medical Assessors into disrepute.

Accountability and Transparency

32. Medical Assessors are accountable for their assessments, decisions and actions taken as Medical Assessors and have a responsibility to be open and frank about their assessments, decisions, actions and inaction in relation to their functions.
33. In particular, Medical Assessors are to:
    1. participate in performance evaluations and engage with the performance framework delivered by the Commission;
    2. co-operate fully in complaint investigations carried out by the Commission in accordance with the Access and Equity Service Charter;
    3. regularly review and evaluate their own performance and capacity;
    4. initiate discussion with the Commission to seek support with any performance related activity.

Respect for Persons

34. Medical Assessors are to conduct all interactions during their functions in the Commission in a manner that is patient, courteous and respectful of all parties, interpreters, representatives, Commission staff and others with whom Medical Assessors must deal.
35. Medical Assessors should endeavour to understand and be sensitive to the needs of persons involved in proceedings before the Commission, including:
    1. demonstrating patience, courtesy and respect in their own conduct and demeanour;
    2. communicating in a clear, plain manner to be understood by the parties;
    3. being aware of and responsive to cultural and other sensitivities in relation to forms of address, conduct and dress.
36. The Commission recognises the importance of fairness, dignity, and respect for others in the workplace. Each person in the workplace, including Commission staff, medical staff and Medical Assessors, should have a safe and secure place in which to work. The Commission does not tolerate inappropriate workplace behaviour, which includes bullying, harassment, sexual harassment, other forms of unlawful discrimination, vilification and violence.
37. Medical Assessors must be familiar and comply with all relevant policies in relation to workplace behaviour.

Privacy and Confidentiality

38. Medical Assessors and those subject to their direction and control must respect the confidentiality of the medical disputes that are provided for assessment and determination and not disclose any confidential information otherwise than as permitted by law.
39. Other than in the exercise of Commission functions, Medical Assessors must comply with the following legislation, and any other policies prescribed by the Commission in respect to privacy, confidentiality, and use of and disclosure of information:
    1. Information Protection Principles in Part 2, Division 1 of the Privacy and Personal Information Protection Act 1998;
    2. Health Privacy Principles in Schedule 1 of the Health Records and Information Privacy Act 2002.

Cyber Security/Artificial Intelligence (AI)

40. All Medical Assessors are required to use Pathway, the Commission’s dispute management system, to administer matters except or unless it is not available.
41. Pathway provides access to communication, documentation, calendars, certificates, invoicing and other information and administrative tasks required in the performance of the decision-making function.
42. When undertaking work on a local hard drive or computer, Medical Assessors must delete all documents from the local hard drive immediately after uploading documents to Pathway, to ensure confidential information is secure.
43. Medical Assessors are required to comply with the Commission’s cyber security and data privacy requirements which includes, to:
    1. implement and maintain measures to protect electronic and physical records, which contain confidential data shared by the Commission;
    2. apply appropriate security controls on their computer and to all other electronic devices used to access the Commission’s systems;
    3. alert the Commission to any change of circumstances which impacts the level of cyber security administered by the Medical Assessor including known cyber-attacks or details compromised by phishing.
44. Medical Assessors will be asked to confirm their cyber security arrangements with the Commission.
45. Medical assessors are not to use Artificial Intelligence (AI) in their decision making, including in the development, generation, or preparation of their decisions, medical certificates, opinions or reasons.
46. Medical Assessors who utilise AI technology or tools for purposes other than decision making as outlined above (such as for transcription, translation and recording notes) must disclose this to the Commission and ensure they under they understand how the technology or tool works and manage and mitigate the risks that come with use.
47. As Medical Assessors are subject to privacy and confidentiality obligations with respect to Commission information, they must not enter any private, confidential or potentially identifying Commission information into publicly available AI programs or otherwise, as the privacy, confidentiality and security of information provided to such AI programs is not guaranteed and may result in inadvertent and unlawful disclosure.
48. Medical Assessors are required by the Commission to participate in a range of cybersecurity awareness programs to stay informed about emerging threats, and adopt best practices and policies related to cybersecurity and AI. From time to time, the Commission may direct Medical Assessors adhere to updated policies or guidelines with respect to cyber security and the application of AI.

Particular Issues

Gifts, Benefits and Hospitality

49. Where gifts or benefits are offered, or social invitations extended, by parties or representatives in Commission proceedings, to Medical Assessors, these should be declined.
50. Medical Assessors may seek advice from the Principal Registrar in relation to social invitations received and whether they should be declined.
51. In circumstances where gifts cannot be or it is inappropriate for a gift to be declined, the Principal Registrar should be informed so that it may be recorded in the Commission’s gift register. The gift may be retained, donated to a charity, used for the benefit of Medical Assessors or staff generally or public display in the Commission’s premises may be appropriate, depending on the circumstances.
52. Medical Assessors must not provide gifts to Commission staff.

Public Engagements

53. Medical assessors are to seek the President’s approval to deliver presentations or publish papers or studies about the PIC practice and procedure, PIC Act or enabling legislation. If case studies from the Medical Assessors’ work within the PIC are referred to, these must be de-identified in such a way to ensure that the identity of any individual could not be apparent from the consideration of the paper or the presentation.

Committee Membership and Other Groups

54. Medical Assessors should inform the Principal Registrar of any positions held on any committee, board or other group and must withdraw from any discussions about the operation of the PIC Act or its enabling legislation.
55. The Principal Registrar may keep a register of positions held by Medical Assessors.

Social Media

56. Medical Assessors must ensure that they do not engage in any of the following activities on social media:
    1. create content that is relevant to the business of the Commission;
    2. discuss or share posts on topics that directly or indirectly reflect on the practices and operations of the Commission;
    3. engage with any content that falls within the above definitions in non-written ways including but not limited to “liking” or “reposting” such content;
    4. engage with any content that is of a political nature including, but not limited, to “liking” or “reposting” such content.

Corrupt Conduct

57. If a Medical Assessor becomes aware of an instance of behaviour that could be corrupt conduct, maladministration, or criminal conduct, relating to the Commission, the Medical Assessor should report it promptly to the President or Principal Registrar in line with the Public Interest Disclosure(PID) policy.

Post Service Conduct

58. After ceasing their appointment with the Commission, former Medical Assessors are not to use, for any purpose, confidential information of the Commission obtained during their duties as a Medical Assessor.

Complaints and Concerns

59. Complaints to the Commission in relation to Medical Assessors will be dealt with as outlined in Commission’s Access and Equity Service Charter and its Complaints Policy.
60. Medical Assessors may raise, with the Principal Registrar and/or the Medical Assessor Reference Group, any concerns regarding other Medical Assessors, Commission Members and staff, and Commission practice and procedure.

Protection of Medical Assessor

61. Anything done or omitted to be done by a Medical Assessor in exercising the functions conferred or imposed by or under the PIC Act or its enabling legislation does not, if the thing was done or omitted to be done in good faith, subject the Medical Assessor personally to any action, liability, claim or demand.
62. A Medical Assessor is, in any legal proceedings, competent but not compellable to give evidence or produce documents in respect of any matter in which the Medical Assessor was involved while exercising the functions conferred or imposed by or under the PIC Act or its enabling legislation.
63. Medical Assessors may seek advice, guidance and legal assistance from the Principal Registrar in relation to any external complaint, action, request or demand made on or against them in relation to undertaking their functions as a Medical Assessor.

Compliance with this Code

64. If a Medical Assessor does not comply with this Code, the President may direct the Medical Assessor to take specified action to rectify their conduct and further work may not be allocated to the Medical Assessor until the breach is rectified.
65. In cases of serious breaches, the President may suspend the Medical Assessor’s appointment and/or terminate the appointment.
66. This Code does not stand alone but forms part of the accountability framework within which both the Commission and the Medical Assessors operate.
67. When necessary, the President may direct the applicability of policies, protocols and guidelines to Medical Assessors.
68. This code is complementary to the Commission’s procedures, policies and protocols, including the Terms of Appointment, and the Commission’s complaints process and other specific policies and protocols relating to Medical Assessors.

His Hon Judge Gerard Phillips

President

15 October 2024