Making Sure Lawyer + Doctor Doesn’t = Disaster

Most people will tell you that what they say to their lawyer is subject to legal privilege (with some quoting more from American movies than the actual legislation).

Most people will also tell you that what they say to their doctors, or what their doctor treats them for, is subject to privilege also.

So it seems only natural to think that when someone’s lawyer sends them to see a doctor for a medico-legal assessment, that person must have somehow hit the jackpot of confidentiality, a bulletproof sanctuary where admissions, concerns, questions, theories and anything else can spill, unchecked, from the lips of the patient/client, never to leave the fort of medico-legal privilege. What’s more, the insurer will pay for these sessions, right?

The fact of the matter is that many people who attend for medico-legal assessment are vulnerable and totally unsure of their rights, the anticipated outcome of their case and, sometimes, the reason for the medical appointment; “it’s just something my lawyer organised for me”.

When lawyers have a huge caseload of files, and medical practitioners have to balance the needs of patients receiving medical treatment with the demands of those attending purely for medico-legal purposes, with whom does the responsibility rest to ensure the patient/client in all of this understands what’s going on? Quite simply, the answer is with both the legal and the medical practitioner. Both have professional standards, ethical responsibilities and conduct rules that require attention is given to ensuring the patient/client makes voluntary, informed choices about his or her health care and legal proceedings. Both also usually have billable increments of time, that are precious, highly in demand, and not available, in a practical sense, to repeated requests from patients/clients to explain the intricacies of every last detail relevant to their case.

How then can a harmonious relationship be struck between the competing interests of time, legal issues, medical explanation and investigation, and patient/client autonomy?

One answer can be found in the document “Medico-legal relations: A restatement; The Law Society of New South Wales and Australian Medical Association (NSW) Limited” (2010) (the Restatement). This document spells out, amongst other things, the role of the legal and the medical practitioner, and provides guidance to each on instructing and dealing with the other. This creates consistency and transparency in dealings that can only serve to benefit the patient/client, which is, of course, the mutual goal of practitioners.

Similarly, a brochure setting out some basic information about attending medico-legal examinations has been published jointly by Law Society of NSW and Australian Medical Association, and is freely available to practitioners, as well as to patients/clients, for instance, through the Medico-Legal Liaison Committee of the Law Society of NSW.

The benefits of being able to read, in his or her own time, information about the medico-legal assessment process, should not be understated, both in respect of the clients/patients to whom the information is directed, but also to the practitioners, who can spend more time attending to the particular needs of the patient/client, and who can also rely on standards and recommendations set out in the Restatement to guide their relations with the “other” practitioner.

These sorts of publications, together with professional courtesy, create a good working relationship between legal and medical practitioners, leading to transparency, consistency, accountability, and patient autonomy: if there are better cornerstones of practice, they are beyond the scope of this article.