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Jackson V Acc (ai 483/02) Taping of medical assessments

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Posted 12 August 2004 - 07:22 AM

Journal of the New Zealand Medical Association, 11-October-2002, Vol 115 No 1163


Medical records
Daniel Kerr

Anecdotal evidence suggests that the majority of medical practitioners would refuse to examine someone who demanded that his or her consultation be tape-recorded. However, the decision of Judge A A P Willy in Jackson v ACC (AI 483/02) has held that there is “no rational basis” for such a refusal by a doctor.

The case of Jackson v ACC, arose in the accident compensation context, in which the applicable legislation requires a claimant to undergo assessment by a registered health professional when reasonably required to do so. The Corporation may decline to provide entitlements if a claimant unreasonably refuses or fails to comply with that obligation.

In Jackson v ACC the claimant and her advocate had attended a medical assessment with Dr R at ACC’s request, and had demanded that they be allowed to tape-record the assessment. Dr R explained that he would not allow the assessment to be recorded, and so the assessment did not take place. Another appointment was scheduled with Dr R, but for the same reason this did not proceed. An appointment with Dr K was scheduled, but prior to the assessment Dr K indicated that he would not accede to the claimant’s husband’s written request to tape-record the examination. Subsequently, ACC declined to provide the claimant’s entitlements on the basis that she had unreasonably refused to undergo assessment when reasonably required to do so by the Corporation.

The Court held that the claimant was entitled to demand to tape-record her medical assessments, and that her demand did not amount to an unreasonable refusal to undergo assessment. The failure of the assessments to proceed was attributed not to the claimant’s demand to make a recording, but to the doctor’s refusal to allow her to do so.


Although the case arose in the accident compensation context and its statutory regime, Judge Willy expressed the view that it may have repercussions for doctors beyond their ACC work.

In his judgment, Judge Willy considered the reasons given by medical practitioners for refusing to allow consultations to be tape-recorded. The first was that to tape-record the proceedings would alter the tenor of the examination, which was meant to be an independent medical assessment and not a taped legal assessment.
Judge Willy expressed the view that the fact that what is said at the examination will, or might, be used in evidence in legal proceedings is a tenuous basis for a doctor to refuse to examine a patient. He said that there can be no objection to ensuring that what is said is accurately recorded and not subject to any avoidable misunderstandings. He further pointed out that any privilege or privacy that attaches to the doctor–patient relationship is for the patient, and not for the doctor, to enforce or waive.

With respect, Judge Willy failed to appreciate that a tape recording by no means guarantees accuracy. There is potential for a tape recording to be edited or presented in such a way as to distort what actually took place or was said, and a doctor who allows a tape recording to be made has no control over what is done with it and to whom copies of it are subsequently given. Furthermore, an aural recording does not detect body language, gestures or facial expressions, all of which can drastically alter the meaning of the verbal statements they accompany.
Judge Willy stated that, although it obviously comes as a surprise to some practitioners to have their utterances and those of patients recorded, it is commonplace in other related callings. He referred to the fact that a verbatim record is kept in most courts, and that the police record interviews with suspects.
However, any comparison between medical consultations and court proceedings or police interviews is surely mistaken. Medicine and law enforcement are not so similar as to constitute “related callings”. Moreover, the verbatim records taken in courts and police interviews are kept secure, are used for limited purposes, and access to them is restricted.

As the Judge himself accepted, the doctor–patient relationship is a very special one, in which there is a need for absolute frankness concerning what are frequently very intimate matters. It is suggested that a request to tape-record a consultation has the potential to undermine the doctor–patient relationship by calling into question the doctor’s independence and integrity. It may be suggestive of a degree of mistrust and an adversarial approach to the consultation.

On the other hand, the fact that recording is commonplace in callings that are more closely related to medicine, such as psychology, counselling and social work, suggests that the use of tape-recording need not necessarily undermine the doctor–patient relationship. It does also have the potential to enhance the relationship by promoting patient understanding and recall of the consultation, thereby fostering trust.

Judge Willy stated that a request to tape-record is not an aspersion on integrity, but merely a reflection of fallibility. With respect to the Judge, this statement oversimplifies matters and does not recognise that the purpose of a written medical report is not primarily to provide a detailed account of what took place in a consultation but to set out the doctor’s observations, diagnoses and any suggestions for further treatment. A tape recording may help to reveal the exact questions put by the doctor and the answers given by the patient, but the fact that the patient makes a tape recording will not result in the provision of an infallible medical assessment or eliminate the possibility of errors in the interpretation of symptoms and the diagnosis of conditions.

Judge Willy concluded that none of the objections to the tape-recording of examinations have any merit. So what are the implications for doctors of this somewhat contentious conclusion? Are they prevented from refusing to examine somebody who demands to record the consultation?

The Judge accepted that there is no principle requiring a doctor to give an expert medical opinion simply because he or she is asked to do so. The Hippocratic Oath requires a doctor to treat and prevent illness to the best of the doctor’s ability, but nothing in the oath touches upon the provision of expert medical opinion.
In Jackson v ACC, the claimant’s lawyer claimed that she had a “right” to tape-record her medical assessment. However, it is suggested that a patient cannot have an absolute right to do whatever he or she pleases. As the Court of Appeal held in R v B [1995] 2 NZLR 172, 178, “individual freedoms are necessarily limited by membership of society and by the rights of others and the interests of the community”.

Surely a patient’s right or entitlement to request a tape recording must be balanced against, and possibly restricted by, a doctor’s right or entitlement to regulate the way in which an assessment is carried out, including the environment in which it is conducted. Such a right or entitlement facilitates a thorough, independent and objective assessment of a patient. The balancing of each party’s rights and entitlements requires discussion and negotiation on both sides, rather than inflexible demands.

Contrary to the Judge’s indications that the case may have far-reaching implications for the medical profession, it is suggested that it should be restricted to its particular facts. Judge Willy did not make a determination that doctors cannot refuse to examine people who demand to tape-record their assessments, but that the claimant’s demand to make a recording did not amount to an unreasonable refusal to undergo assessment in terms of the accident compensation legislation. While the Court held that the claimant was entitled to ask for a tape-recorded examination, it also accepted that the doctor was entitled to decide in what lawful way the medical examination would be conducted. Despite Judge Willy’s criticism, the doctor was thus entitled to say that he would not examine the claimant if she insisted on having a tape recording of the procedure.

Although the decision in Jackson v ACC does not restrict the ability of doctors to refuse to examine someone who demands to tape-record the consultation, it does have potentially far-reaching implications for the Accident Compensation Corporation and practitioners who provide services to the Corporation.

If, for instance, the Corporation believes that a claimant is no longer suffering from the effects of a personal injury for which he or she has cover, it will usually be necessary to obtain an opinion from a medical practitioner to confirm this. If the claimant demands to tape-record the medical practitioner’s assessment, but the doctor does not accede to that demand, the assessment cannot proceed and the Corporation must continue to provide entitlements indefinitely because the claimant cannot be said to have unreasonably refused to undergo assessment.

In deciding to examine a person for the purposes of giving an opinion, the Judge did accept that the doctor may prescribe the terms of that examination, such as the date, time and place, the type of examination required, whether any bodily samples are necessary, whether or not a nurse needs to be present, etc. He said that an examinee who took exception to such ordinary requirements and declined to attend an examination on such terms would, in the ordinary way, be said to be refusing to submit to an examination in terms of the relevant legislation.

Surely a claimant who demands to record an assessment is acting at least as unreasonably as someone who demands to undergo a medical examination at a date, time or place other than that specified by the doctor. If, as Judge Willy says, a doctor may prescribe the terms of an examination for the purposes of giving an opinion, then why should those terms not include the manner, if any, in which the assessment is recorded?

Finally, Judge Willy expressed the view that the existence of an accurate tape recording of a medical interview may obviate the necessity for a claimant to insist on having an advocate present at a medical assessment. He said that if the case had depended on the question of a right to have advocates or lawyers present at a medical examination, the outcome may well have been different. The Judge, somewhat ironically, stressed that medical practitioners who are asked to perform assessments by ACC are experienced and impartial, and have no pecuniary or other interest in the outcome beyond their fee. While a patient might feel more comfortable in having present a family member or friend for moral support, he doubted that there would be many circumstances in which it would be reasonable to insist on having one’s lawyer or advocate present at such an assessment.

If attending a medical consultation with one’s lawyer or advocate amounts to an unreasonable challenge to the doctor’s expertise, integrity or impartiality, then it is difficult to see how a demand to tape-record the consultation does not also unreasonably call into question the doctor’s impartiality and integrity.

In summary, the decision of Judge Willy in Jackson v ACC heavily criticises doctors for refusing to allow recordings to be made of their assessments and finds no rational basis for such a refusal. The Court does not, however, ultimately hold that doctors are prevented from refusing to allow tape recordings to be made. The decision seems more likely to cause problems for ACC than for doctors, but may impact on doctors’ practices indirectly.

If claimants adopt the practice of demanding to tape-record assessments so as to avoid having their entitlements suspended, ACC may seek a legislative solution to the problem. However, given the emphasis on claimants’ rights in the new Injury Prevention, Rehabilitation, and Compensation Act 2001, such legislative amendment may be difficult to progress politically.

It is not inconceivable that in order to avoid claimants indefinitely avoiding suspension of their entitlements, the Corporation may be tempted to engage only medical practitioners who are happy to allow claimants to record their assessments. Given that most practitioners seem uncomfortable with having their assessments recorded, it is difficult to predict what may transpire.

Given that tape-recording will not undermine the doctor–patient relationship in all cases, and may in fact be used to enhance it in some circumstances, it may be that a balance can be struck whereby medical consultations can be recorded pursuant to a mutually acceptable agreement between doctor and patient. Such agreement may include matters such as the purposes for which the consultation is recorded, the security and custody of the tape, the uses to which it might be put, and questions of privacy.

Author information: Daniel Kerr, Solicitor, KPMG Legal, Wellington
Correspondence: Daniel Kerr, P O Box 10 246, Wellington. Fax: (04) 472 2291; email: [email protected]

http://www.nzma.org....l/115-1163/205/

question: Who was Dr R?
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#2 Guest_IDB_*

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Posted 12 August 2004 - 10:16 AM

Did you know that the NZ medical profession in total have known since October 2002 (when it was published in the NZ Medical Journal) in reference to a court decision regarding an ACC assessor (called Dr R - Could this be the same person who is also not NZ registered or vocationally registered, yet has been claimed to be both) in the case Jackson v ACC, that there was "no rational basis" for any doctor to refuse to allow a consulation to be tape-recorded.

As Judge Willy made clear, claimants are entitled to demand to tape record a medical assessment, and that demand does NOT amount to an unreasonable refusal to undergo assessment.

This article stated that Judge Willy "heavily criticises doctors for refusing to allow recordings to be made of their assessment and finds no rational basis for such a refusal for stated that a doctor who did not want to be tape recorded could refuse to carry out the assessment. He said "there can be no objection to ensuring that what is said is accurately recorded and not subject to any avoidable misunderstandings." He further pointed out that any privilege or privacy that attaches to the doctor-patient relationship is for the patient, and not for the doctor, to enforce or waive."

While the court held that the claimant was entitled to ask for a tape-recorded examination." The article goes on to say that despite Judge Willy's criticism, the doctor was "entitled to say he would not examine the claimant" if he/she "insisted on having a tape recording of the procedure."

This was published in the NZ Medical Journal 11 October 2002, Vol. 115. No. 1163.
URL: http://www.nzma.org....al/115-163/205/


The question then has to be asked, if the medical profession have been aware of this since October 2002, why it it that since that time so many ACC assessors have refused to allow assessments to be tape recorded? Claimants have also been disentitled for making this request. It is now clear that the Corporation's conduct was in breach of law.
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#3 User is offline   flowers 

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Posted 15 November 2006 - 11:46 AM

Whem antionidis refused to allow me to tape acc casncelled my erc and suspended me.
this was illegal and after rather high level advocasy by larraine They were forced to reinstate me..
Of course by then I had had it with them and when they made another appointment with a different toady I simply refused as they had taken away podiatry and home help with bullshit arsessments which were later reinstated by the district court and at that time there was no agreed aor deemed irp in force and was suspended again.
It took a further two years untill the cases had been heard and I was able to get them to agree to a irp which I had negotiated and my mandatory attendance at an irp before I was reinstated.
They break the law repeatedly and force us to appeals in district court to get them to obey the law.
This is fraud...................

the comments of judge Cardenhead clearly castigates acc for their niggardly approach and decisions.

Quote: "Decision
In my view, the appellant suffered a crippling injury from the accident that he sustained.
Higher Courts have indicated that it is inappropriate to take a niggardly and ungenerous view concerning the assessment of benefits.
On the other hand, it is recognised that the use of public money must also carefully be monitored.
After reading the medical reports, I am of the opinion that it is reasonably clear that the appellant would have problems attending to the care of his feet, and that these problems are a direct result of the lack of mobility that he has suffered as a result of the accident.In the alternative, a strong argument can be made for the fact that the care of the appellant's feet are part of his rehabilitation. Indeed, that rehabilitative process was being carried out by the respondent, but unfortunately had been omitted from his individual rehabilitation plan.
I am of the view that the appellant is entitled to the podiatry services that he claims. However, the extent of those services will have to be determined in another primary decision by the respondent.
I allow the appeal on this issue and set aside the primary decision.
In the end, the appellant has been successful with his appeal. I allow the appellant $ 1,000 costs plus proved disbursements....." Unquote

refer: http://www.accforum....p?showtopic=892
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#4 User is offline   Witchiepoo 

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Posted 15 November 2006 - 12:12 PM

Great stuff JACKO !!!
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#5 User is offline   Erin 

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Posted 15 November 2006 - 11:54 PM

Very interesting information. Thanks.
Erin
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Posted 09 May 2007 - 03:29 PM

Hi there

Can someone put this in print form for us low IQ people who don't know how.

maybe it should be on the legal documents site. Would be good.

Cheers
Mini
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#7 User is offline   watcha 

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Posted 09 May 2007 - 04:39 PM

It must not be forgotten that whenever and wherever ACC requires a claimant to undergo a medical assessment, there is no doctor/patient relationship with the assessing medical professional. He or she is a third party contractor.

Judge Willy got it right, perhaps from a different angle but right nevertheless.

I have heard of medical assessments being video-taped, with the doctor's consent. A different judge, however, held that the "expert medical professional should not be subjected to such scrutiny".

Hang on a minute mate. Isn't the medical assessment, or any similar type of assessment, a matter of such importance that it must be beyond reproach and, moreover, seen to be beyond reproach??

Shame on you Judge Barber!!!
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#8 User is offline   freefallnz 

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Posted 09 May 2007 - 10:36 PM

Tis a shame that ACC have removed the Generic contracts they has for providers from their site.. they did state that "tape recording" was to be expected and allowed because of the "nature" of the services provided..

The old ACC link
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#9 User is offline   tonyj 

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Posted 10 May 2007 - 08:02 AM

View Postfreefallnz, on May 9 2007, 10:36 PM, said:

Tis a shame that ACC have removed the Generic contracts they has for providers from their site.. they did state that "tape recording" was to be expected and allowed because of the "nature" of the services provided..

The old ACC link


Call me old fashion , but I have always taped near everything.
I have three boxes of tapes , went digital a few years back and now store on a 40 gig remote HD ... working with voice rec to transcribe..

I have a brain Injury so the tapes are so I don't get it wrong and when need refresh my own organic memory .

There has been occasions when I have had the need to use the recordings to clarify errors of recall others may have had at times (grin) .

Frankly I would loose a whole chunk of my cognitive function without the support of my back up electronic brain and might well not have the confidence to function in the big wide world..

Not because I need it to keep ACC and others honest but to keep me honest.. I can get the wrong end of the stick all to easy , especially if I am stressed ot fatigued .

I actually wear two recorders these days .. one on permanent voice activated to record every interaction during the day ...its set om meeting.. the other I can activate from my pocket discretly to capture selected discourse..

I did a generic blanket disclosure years ago that covered ACC and all contractors , agents and any service providers that i actually gave to David Rankin . I make no bones about it when working within BI support that its an important management tool ... not to trap others but to avoid them getting it wrong... not just with service providers but family, social and private commercial aspect of living..

Do I disclose , NO
Do I do it discreetly ... yes

why .... because people act and react very differently when they are being taped and I do not want to have it influence the interactions..

so it just simpler ... KISS

tony
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#10 Guest_mini_*

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Posted 10 May 2007 - 10:43 AM

Tonyj

Well no one will mess with you in a hurry eh??

Mind you, given your impairment, I too, may do the same thing.

My understanding of this issue is that the person/s you are taping must be made aware before the meeting/whatever, that you are taping and that way the information can be used in Court. Usually the tape is typed up in hard copy and the other party signs it as being correct. Mind you they have the right to do the same to you, if only as you say to keep their records straight.

Maybe one should always be aware that they could be being taped and act accordingly.

Cheers
Mini
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#11 User is offline   Alan Thomas 

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Posted 10 May 2007 - 11:04 AM

Maybe one should always be aware that they could be being taped and act accordingly.

I might be thinking radical thoughts here but...
Maybe, just maybe, as part of the employment process, the employs people on the basis of ethics, integrity and honesty as a standard part of the employment criteria.
Am I expecting too much?

If I am expecting too much then I think we must record their crime and prosecute. It is no good just recording if you don't prosecute! Recording them while not telling them is perfectly legal and acceptable in court as previously confirmed on this thread.
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#12 User is offline   Jack 

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Posted 13 May 2007 - 10:36 PM

View PostAlan Thomas, on May 10 2007, 11:04 AM, said:

Maybe one should always be aware that they could be being taped and act accordingly.

I might be thinking radical thoughts here but...
Maybe, just maybe, as part of the employment process, the employs people on the basis of ethics, integrity and honesty as a standard part of the employment criteria.
Am I expecting too much?

If I am expecting too much then I think we must record their crime and prosecute. It is no good just recording if you don't prosecute! Recording them while not telling them is perfectly legal and acceptable in court as previously confirmed on this thread.


TAPE THE BASTARDS

You can pick up small mp3 players that have a record function quite cheap. Make it a habit to record all acc related conversations.

You would not believe what I have recorded over the last few years. And I wish I had recorded eariler meeting, and would then have proof of their lies.

If they not know they are being recorded they are more likely to commit fraud. Oh how I wished I recorded a few of the meeting I have had.

But since I wised up, got lots of interesting stuff on tape, including a winz manager saying "Yes ACC is involded in fraud" and going on to tell me a story of one of there friends in great detail.

Have Union Lawyer saying it not our (the union) problem that the company is knowngly injuring its staff"

Caught ACC manager telling lies during one of my reviews, cant tell you have much fun it wa to say to that manager - "You are telling lies, I have you right here on tape, what to hear ?"

Have fun, and remember to record time and date and place on recording. And also run some tests so you can record them while having recorder nicely tucked away, but remember its important to test this and you need to know where the recorder works and where it doesnt

regards
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#13 User is offline   greg 

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Posted 14 May 2007 - 08:03 AM

These MP3 players also have the ability to record in WMP., so unlike earlier recording equipment
this will easily convert to suit software application. Should just plug straight into PC. and will auto
display instructions to download and save.[ME,XP]
Please correct the info if wrong..
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#14 User is offline   Huggy 

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Posted 13 October 2008 - 08:11 AM

Thankyou
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#15 User is offline   fairgo 

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Posted 13 October 2008 - 09:40 AM

Ahhhhhh Judge Willy..... my main man :)
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#16 User is offline   Moeroa 

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Posted 29 December 2009 - 09:55 AM

I notice when they know they're being recorded the behaviour changes. But you're right, when those involved are unaware of recording devices, they say all sorts of things which they later deny/distort or do not recall. I like this approach but it's useless in court if they didn't know. I know someone who is an Auckland city branch claimant who is going digitally armed so the assessment can be used via other media, if not the court.

So thank you very much for this - old or not, it's helping someone who is not on forum. Cheers!

View PostJack, on May 14 2007, 12:36 AM, said:

TAPE THE BASTARDS

You can pick up small mp3 players that have a record function quite cheap. Make it a habit to record all acc related conversations.

You would not believe what I have recorded over the last few years. And I wish I had recorded eariler meeting, and would then have proof of their lies.

If they not know they are being recorded they are more likely to commit fraud. Oh how I wished I recorded a few of the meeting I have had.

But since I wised up, got lots of interesting stuff on tape, including a winz manager saying "Yes ACC is involded in fraud" and going on to tell me a story of one of there friends in great detail.

Have Union Lawyer saying it not our (the union) problem that the company is knowngly injuring its staff"

Caught ACC manager telling lies during one of my reviews, cant tell you have much fun it wa to say to that manager - "You are telling lies, I have you right here on tape, what to hear ?"

Have fun, and remember to record time and date and place on recording. And also run some tests so you can record them while having recorder nicely tucked away, but remember its important to test this and you need to know where the recorder works and where it doesnt

regards

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#17 User is offline   Maraqita 

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Posted 17 January 2010 - 11:26 PM

Get one of those wearable cell phone carrier cases which hang from a cord worn around the neck. Cheap from the $2.00 shop. Cell phone recorder or small digital recorder works well in the pouch & is easily uploaded onto the computer for formatting to disc.

View Postgreg, on May 14 2007, 10:03 AM, said:

These MP3 players also have the ability to record in WMP., so unlike earlier recording equipment
this will easily convert to suit software application. Should just plug straight into PC. and will auto
display instructions to download and save.[ME,XP]
Please correct the info if wrong..

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#18 User is offline   Huggy 

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Posted 18 January 2010 - 11:46 AM

MOE the law is simple, you can record any conversation without informing the person of this as long as you are party to the conversation.

The courts may not like it but it is admissable evidence that was acquired legally.
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#19 User is offline   Moeroa 

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Posted 22 January 2010 - 10:17 PM

View PostHuggy, on Jan 18 2010, 01:46 PM, said:

MOE the law is simple, you can record any conversation without informing the person of this as long as you are party to the conversation.

The courts may not like it but it is admissable evidence that was acquired legally.


Bumping up for those having more assessments and asking on forum and via PM and email. Thank you Huggy.
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#20 User is offline   hukildaspida 

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Posted 01 July 2012 - 10:21 PM

Draw your own conclusions whom Dr R and Dr K are referred to in post #1

http://www.nzlii.org...C/2002/168.html

Jackson v Accident Compensation Corporation [2002] NZACC 168 (25 June 2002)


IN THE DISTRICT COURT
AT WELLINGTON

DECISION NO. 168/2002

UNDER the Accident Insurance Act 1998

IN THE MATTER OF an appeal pursuant to section 152 of the Act

BETWEEN ALICE IRENE JACKSON

AI 483/01 Appellant


AND ACCIDENT COMPENSATION

CORPORATION

Respondent

Hearing: 13 March 2002

(Heard at Palmerston North)

Appearances: J W Maassen with M D Fitzgibbons for appellant

D Kerr with L Lydiard for respondent

Judgment: 25 June 2002

RESERVED JUDGMENT OF JUDGE A A P WILLY

Background

[1] This case raises the novel question of whether or not a claimant subjected to a

medical examination at the request of the respondent is entitled to take an aural tape recording of what is said during the examination.

[2] The respondent contends that she is not; that the doctor in question was

entitled to decline to examine her; and that this results in a refusal by her to a medical assessment for the purposes of ss.115 and 116 of the Accident Insurance Act 1998.

[3] As is not unknown in these cases, this dispute has its genesis in a break down

in confidence between the appellant and the insurer. This has given rise to a perception by the appellant that she needs to keep her own accurate record of all dealings with the respondent, including those involving doctors appointed by it to provide medical assessments.

[4] This lack of trust manifests itself in the doctor claiming a "right" to refuse to

examine a patient who wishes to tape record the proceeding. The reflex of that asserted right, if the respondent is correct, results in the claimant being deprived of compensation that might otherwise be her due.

[5] The point is therefore of some general significance.

The Facts

[6] The following are the "facts" identified by the Reviewer.
[7] The appellant was injured on 15 January 1995 when she slipped on a wet floor. The respondent accepted cover and she has been in receipt of weekly compensation ever since.
[8] In November 2000 the then insurer Catalyst decided to review the appellant's case and referred her to Dr D Ruttenberg for an examination on 4 December 2000.
[9] On 30 November, the appellant's advocate, Mr S McGivern, advised the

insurer that the appellant would be unable to attend at the appointment because she had suffered a knee injury in a fall.

[10] The insurer advised Mr McGivern that it would leave it for Dr Ruttenberg to arrange a substitute appointment. Mr McGivern's response is said, by the Reviewer, to be that the appellant would only attend an appointment once Catalyst had supplied "a copy of her file." It responded that the file had been sent to Mr McGivern on 4 January.
[11] A second appointment was made for 15 February. The Reviewer records that the appellant cancelled it on the grounds that her advocate was not available.

[12] The insurer insisted the examination go ahead as arranged, and it did. The appellant attended with her advocate. What then took place from the doctor's perspective is recorded in a letter of 2 March 2001 which he wrote to the insurer as follows:

"Thank you for asking for my opinion on the above claimant.

Mrs Jackson was scheduled to see me in Palmerston North, on the 1.5th February 2001. She arrived for the appointment 20 minutes late.

She was accompanied to the appointment by a man who did not introduce himself, following my introductions to them.

The gentleman entered the room, sat down and on my asking him who he was and his relationship to the claimant, stated that he was her Patient Advocate, and proceeded to remove a tape recorder from his pocket and inform me that he was going to tape the proceedings.

He stated that he did not need my permission and that he was going to tape it regardless of how I felt.

He also gave me a piece of paper and stated that I needed to read it.

The paper contained details of claimant dissatisfaction with ACC appointed medical practitioners.

It contained details of proposed investigations against such Doctors, utilising the Medical Council instead of the usual bodies for such complaints.

I elected not to proceed in view of the confrontational nature as well as the fact that there was little time left for the assessment by this stage.

The gentleman, who subsequently introduced himself as Mr Sean McGivern, apologised for his conduct.

He stated that he would attempt to be less confrontational when he saw me for other claimants in the course of the day.

I will make contact with Mrs Jackson and arrange a future appointment.

While I am more than happy for a Patient Advocate to be present, guidelines will be proposed prior to me seeing the claimant.

I will correspond with you once I have seen her again."

[13] Mr McGivern puts a different construction on events. The circumstances in which he does so, however, yet again illustrate the difficulties which arise when review hearings are not conducted in a way consonant with natural justice and minimal procedural standards. I dealt with this in Mr A v Accident Compensation Corporation (157/2002) in some detail and will not repeat what I there said.
[14] The absence of generally accepted procedures in this case resulted in the appellant giving no evidence at all at the review hearing. Mr Jackson is recorded in the "notes of evidence" as being sworn at page 2. He is not permitted to say anything until page 45. At page 5, Mr McGivern was sworn in to give evidence. He does so between pages 5 and 10 and pages 51 to 53.

[15] This is not Mr McGivern's claim. He is recorded as being the "advocate" for Mrs Jackson. He cannot be both an advocate and a witness. The roles are fundamentally distinct, and must be kept so. To the extent that he has some factual evidence to give which is relevant to Mrs Jackson's case, he should have been required to surrender his role as advocate. He did not do so and was permitted to make submissions on Mrs Jackson's behalf on two further occasions.
[16] It may be that no harm was done in this case because the Reviewer was alert to the distinction when he required Mr McGivern to be sworn.

[17] I therefore think it is safe to admit as evidence on this appeal the sworn testimony given by Mr McGivern. This is what he says:

"THE OATH WAS TAKEN BY MR MCGIVERN

MCGIVERN: Okay I'll start again. It seems the reason that Catalyst and

Dr Ruttenberg making this second appointment for an assessment was that Dr Ruttenberg 's secretary supposedly contacted my office, during this conversation I had waived my right to tape the assessment. This conversation never took place. In retrospect what happened was that at another appointment with another Doctor and my client with my client, my tape actually failed at the beginning of the assessment, I was unable to tape the procedure. This information mysteriously got to Dr Ruttenberg's secretary and she supposedly assumed that I was no longer taping these procedures. This was the reason that Catalyst made the second appointment without confirming with us if we still were going to tape the assessment. I've taped numerous other assessments without any complications with the assessors. At the second, second assessment Mr and Mrs Jackson were both present at the assessment. The tune of the assessment was cordial and pleasant until we proceeded well, produced our tape recorder at which point Dr Ruttenberg once again withdrew his services. I feel that if Dr Ruttenberg was under' the assumption that we were not going to tape the procedure he should have had this confirmed in writing from us before attempting the assessment. Mr Jackson at this point stated that it was himself that had instructed me to tape this procedure and that he then offered to take possession of the tape recorder as he also had the right to tape this procedure. And because of the cir, circumstances surrounding this first assessment that this had become an absolute necessity that this assessment was taped to ensure we had a record of the procedure. I would now like to refer to the, the doc, document from Catalyst dated the 8th of May, which I've supplied"

[18] The insurer took a dim view of Mr McGivern's activities on behalf of his client and on 22 March wrote:

"Catalyst currently has advice from you that Mr Shaun McGivern from New Zealand ACC Advocacy Services is to act on your behalf in relation to your claim number outlined above.

Unfortunately, I need to advise you that Catalyst staff have recently been instructed that they are not required to deal with Mr McGivern. The reason for this has been outlined to Mr McGivern.

Catalyst is however, happy to deal with any other nominated representative or advocate that you may chose (sic) to act on your behalf"

[19] Mr Jackson wrote a spirited reply to this letter on 28 March in which he conceded in effect that if Mr McGivern was the problem he would agree to somebody else from that firm attending the examination. He also gives an insight into why he wants the examination recorded, relating his concerns about what he considers to be misstatements of what was said by the appellant at some other medical examination.
[20] Notwithstanding this lack of trust and confidence, Mrs Jackson did attend on Dr Ruttenberg again on 5 April 2001.
[21] This meeting went badly. Dr Ruttenberg records his recollections of it in a letter of 5 April 2001 as follows:

"I saw Mrs Jackson in Palmerston North again on the 5 April 2001.

She was accompanied to the assessment by her husband and Sean McGivern her patient advocate.

Mr McGivern and his clients insisted on the proceedings being recorded I explained to him my position on this and specifically that it would alter the tenor of the examination, which was meant to be an independent medical assessment and not a taped legal assessment.

Unfortunately, under the circumstances, I am unable to continue with an independent assessment in these circumstances."

[22] Mr McGivern wrote to the insurer on the same day saying:

"Re: Alice JACKSON— Claim No : Q2569643/004 Rescheduled appointment with Dr. Ruttenburg

Today I attended the rescheduled appointment for Alice Jackson with Dr. Ruttenburg. On attending this appointment Alice, myself and her

husband were present. At the outset of this appointment, we requested Dr. Ruttenburg's permission to tape this proceeding as we are legally allowed to do as reiterated by Alice's husband, a Police Officer.

Dr. Ruttenburg at this point objected to our taping of this proceeding for some unbeknown reasons. His explanation was that he felt it belittled the procedure and he could not see the reasoning behind taping this procedure. I explained to him at that point that we are legally entitled to tape this procedure for future reference as it is quite difficult to take in everything that is stated during the course of a one hour assessment. I would to at this point clarini with you once again that it was Dr. Ruttenburg that withdrew from this procedure NOT US. Any attempts by your company to suspend Alice's entitlement will be met with vigorous defence. You are not allowedto under the Human rights Act or the ACC Act suspend someone's entitlement on the grounds that YOUR PARTY withdrew because of legal interpretations. Dr. Ruttenburg 's solution to this problem is that my client, Alice Jackson will be made another appointment with another Occupational Specialist that does not have a problem with our taping his procedure."

[23] The insurer considered the matter and wrote to the appellant on 19 April as follows:

"Today I received a letter from Dr Ruttenberg regarding your appointment with him on 5 April. Dr Ruttenberg stated that you were accompanied to the assessment by your husband and by Shaun McGivern. This is contrary to what was portrayed in a letter from Mr Jackson dated 28 March where he wrote "as a clear show of good faith on our part, I advise that at least for the next appointment with Dr Ruttenberg, a member of his organization will attend in his place".

Dr Ruttenberg also explained that your party insisted on the proceedings being recorded and that he was thus unable to continue with an independent assessment.

I would like to remind you that on 21 February following your failure to cooperate in your previous assessment with Dr Ruttenberg, Catalyst, as a gesture of good faith agreed to reinstate your entitlement provided you agreed to attend and co-operate in full with an assessment by Dr Ruttenberg.

As I have explained to you, part of the reason for the consultation is to establish your ongoing entitlement due to incapacity. If the consultation does not generate a report, then your ongoing incapacity cannot be confirmed As Catalyst has been unable to obtain this information, you have not fulfilled your responsibilities under section 115 of the Accident Insurance Act.

As per my letter of 21 February I must now advise that, pursuant to section 116 of the Act, Catalyst will decline to provide your entitlement to weekly compensation in 10 working days (3 May). This entitlement may be reinstated if you attend and co-operate in full in an assessment with Dr Ruttenberg, however it will not be backdated

If you would like more information about the reasons for this decision or if you have more information to give me, I would like to talk about it with you.

If you are then not satisfied, further options are available for you to consider.

Keep the enclosed leaflet Resolving Issues. Please read it carefully. It outlines:

Your options; and
Your right to have this decision formally reviewed if you apply for a review within three months of the date of this letter.

If you would like to discuss this matter I can be contacted on 0800 228 249 Extn 7333. I have spoken with Dr Ruttenberg who has agreed to contact you to provide you with the opportunity of arranging another assessment time."

[24] Mr Jackson wrote a four page rejoinder which includes the following:

"In order to progress matters, it is requested that a further appointment with Dr Ruttenberg be arranged as indicate in the Ms Levy's 19 April 2001 letter. However, you should advise Dr Ruttenberg that the consultation will be taped, and that Mr McGivern and myself will be present. (author's emphasis)

Finally on this issue and contra to the opinion that you may have, it is not our objective to be obstructive, rather we are more than prepared, as declared above, to cooperate and assist the process. However we would make it clear that we will not be "brow beaten," "bullied," or coerced by threats, mis-statements, and half-truths. That the current position exists at all is simply because of the actions of some Catalyst personnel to date toward us which has made us respond, somewhat uncharacteristically, in the manner that we have, to the point where this issue is now as much about fairness, principle, and process.

On a separate but related matter, I note that Catalyst still refuses to deal with Mr McGiven even though he is our chosen advocate, and you have been advised of that. While catalyst continues to do this, Catalyst is in effect "choosing" our advocate — despite the fact that it is our understanding they cannot.

In order that I can clearly understand the Catalyst position on this matter, I repeat my earlier request that I be provided with the legal or other opinions that have given rise to Catalyst's stance.

To assist you to provide this information, I enclose a signed letter from Mr McGiven authorising you to release to me all legal or other opinions, correspondence and communications held or had by Catalyst and / or ACC or both as to why Catalyst will not deal with Mr McGiven.

Also, for the sake of completeness it is requested that you forward a copy of all correspondence on your file from date you supplied a copy of your file to us. That correspondence is to include, but not limited to all communication between Catalyst, Dr Ruttenberg, and ACC if applicable, internal memoranda, electronic email, computer files, hand written or electronic notes, hard copy or electronic file notes of phone conversations, person to person conversations etc pertaining to this claim and recent events relevant to it.

Finally, I would request under the provisions of the Official Information Act the following:

The total number of assessments that Catalyst has asked Dr Ruttenberg to undertake, and how many of those assessments have resulted in the individual either being denied continued payments by ACC. How many have had their payments reduced, and how many have remained unchanged?
The total number of cases processed by Catalyst to date, and of the cases processed to date by Catalyst, the total number that have had their entitlements removed, and the total number that have had them reduced, and the total number that remain unchanged?

3) Of the number that has had their entitlements terminated or reduced, how many have been assisted (rehabilitated) into long term permanent employment?

This information will assist in evaluating just how objective Catalyst is in assessing client's needs and in achieving actual rehabilitation for its clients, relative to just terminating their payments as would seem to be the objective — at least as it is portrayed in the media."

[25] The insurer responded on 8 May 2001. It recorded the failure of the appellant to co-operate with the provision of a medical report. As to what it considers to be Dr Ruttenberg's "right" to refuse the examination, it says:

"Point 2

I accept that the meeting between you and Dr Ruttenberg may have been cordial. However, this does not detract from the fact that a report was unable to be commissioned from this assessment attempt. Please be aware that a medical practitioner also has the right to decline to proceed with an assessment if they believe that the tenor of the assessment may be altered due to circumstances that a client or their representative imposes on that assessment."

[26] In relation to the taping of the examinations, the writer says:

"Point 3

Catalyst has not denied Mrs Jackson the right to have an advocate present at assessments. Our continued request was that the assessment be allowed to proceed so that an independent report could be obtained. A person can have the right to ask for an assessment to be taped, however, this is usually done with advance agreement with the provider. In this instance Dr Ruttenberg should have been made aware prior to the assessment that Mrs Jackson wanted to tape the assessment and it is a patient responsibility to arrange this. A medical practitioner, as previously stated, also has the right to decline to continue with an assessment if they feel that there is an obstruction to an objective assessment being carried out." (my emphasis)

[27] This letter elicited a further response from Mr Jackson who said on the subject of the taping:

"While discussing the matter of taping, your lettering seems to be introducing some new rules, or if they pre-existed, why where (sic) they not made known before now — in the interests of transparency and openness.

It is suspected that this recent revision of Catalysts position on taping has been brought about by the fact that there is a clear right for any person to make a tape recording of any proceeding. The only time that it is illegal is when neither party being recorded is aware that a recording is being made. Such action can, and is prosecuted under the Crimes Act 1958.

So long as one party to the discussion is aware that a tape recording is being made, there is no obligation to advise the other person. Your demand that we advise Dr Howard in advance is not a requirement — but we will as a courtesy. And on that point, Dr Ruttenberg was aware that a tape recording would be made at the 3rd appointment, and to claim that he wasn't, is to misrepresent the situation."

[28] On 30 May 2001, a Brenda McGivern wrote on letterhead of the "New Zealand Accident Compensation Complaints Advocacy Services Limited" what can only be described as an angry letter threatening various action if the appellant's entitlements were not immediately reinstated. In the source of that letter, she says:

" ... the issue of our taping the scheduled assessment with Dr Ruttenburg is a totally separate issue and will be decided by the appropriate authorities. This is not, as your actions by suspending entitlements would indicate, an issue for you (sic) Company to decide. It does not state anywhere in the Accident Insurance Act 1998 that you can cease a claimants entitlements due to an Occupational Assessor refusing to have an assessment recorded. Once again, Alice did not fail to attended the scheduled meeting, it was Dr Ruttenburg who ceased the assessment because he didn't want to have the procedure recorded. Your actions will be perceived by the Courts as an attempt by your Company to revert the course of natural Justice. Dr Ruttenburg has given us good reason to question his credibility, what transpired at the point of the first assessment with Dr Ruttenburg, when compared to his account to Catalysts about what eventuated during the course of this assessment were a total contradiction."

[29] Some moderation then seemed to prevail and an appointment was arranged for the appellant to see Dr Keir Howard on 14 June 2001.
[30] On 5 June, Mr Jackson wrote the following letter:

"My wife has been referred to you for an assessment by Catalyst Injury Management Ltd.

My wife is a willing participant to the assessment process, but she will be accompanied by Mr S McGivern a patient advocate who will also be taking a permanent taped record of the consultation.

Catalyst Injury Management Ltd has advised us that it is their requirement that you be advised before hand that a taped recorded will be kept of the proceedings.

Alice's appointment with you on the 146 will be the fourth attempt she has made to have an assessment completed The previous 3 attempts have failed because the Catalyst appointed doctor refused to undertake an assessment if a taped record was kept. Because no assessment document was produced, Catalysts have judged my wife to be at fault and have suspended her weekly compensation payments. The completion of your assessment is import.

Our dealings with Catalyst to date, the failed appointments, and the suspending of her compensation payments have been very traumatic. Therefore should you have an adverse view about a taped record being kept, it would be appreciated if you could let me know as soon as possible on fax (06) 350 3867 — Palmerston North or phone (06) 351 2513.

Thank ru for your assistance, and we look forward to meeting with you on the 141 ."

[31] Dr Keir Howard responded by letter of 7 June 2001 as follows:

"Thank you for your letter of 5 June 2001 relating to the proposed medical assessment of your wife arranged by Catalyst Injury Management Limited for 14 June 2001.


I note that you wish to have patient advocate present at the time of consultation. I have no objection to this, but he must recognise that he is not permitted to interrupt the consultation or make remarks and he would not be allowed to be present during the actual physical examination. I would require your agreement to these restrictions.

The second request, however, is impossible to entertain. I know of no medical practitioner who would allow the proceedings of a medical consultation to be tape-recorded by a third party, particularly when the recording is likely to be used in an adversarial setting and could be used against the practitioner. The Medical Protection Society would not countenance such action and I am not prepared to have any proceedings tape-recorded in this way. I also find it unacceptable to have my integrity as a specialist medical practitioner placed in question. I regret, therefore, that I cannot accede to your request and I think it better that your wife should be referred to another specialist."

[32] Mr Jackson replied on his wife's behalf in these terms:
[33] "Your letter of 7 June 2001 refers.

It would seem that you have clearly misunderstood the reasons as to why a taped record of the consultation has been requested I can assure you that it was not our intention to call into question your integrity, and it is regretted that you have interpreted that way.

As your feelings on the matter have been clearly and strongly put, and that it is you that refuses to undertake the assessment, I advise that Alice will not attend the appointment of the 146 of June 2001 at 10.30am. Please note your appointment schedule accordingly.

Thank you for your response and consideration."

[33] He then wrote to the insurer on 8 June saying, among other things:

"I guess the absurdity of Dr Howard's, and Dr Ruttenberg's position for that matter, is that it is entirely possible for an audio tape — even a video taped record of the consultation to be made without the doctor even being aware of it, with the product being entirely admissible in any civil court. However, it is not now, nor has it been our intention to be subversive; that is an interpretation being made by both Catalyst and their doctors."

[34] The general manager replied in a conciliatory way saying:

"Mrs Jackson is welcome to obtain her own assessment from an independent Occupational Medicine Specialist (ACC approved and FAFOM qualified). However, until such a time as Catalyst is able to obtain this type of assessment information, Mrs Jackson's entitlement will remain suspended. If you wish to proceed with an assessment independently, Catalyst would require the assessor to answer the questions that formatted in the previous referrals.

I hope this clarifies the situation for you."

[35] There is no evidence that this suggestion was acted on. The only other matter of fact adduced in support of the appellant's case, but not available to the Reviewer, is an affidavit annexing a letter from Mr D Brougham, a Palmerston North Orthopaedic Surgeon, dated 6 December 2001. It reads as follows:

"In reply to your letter 20 November 2001 regarding the use of a tape recorder during consultations. Clearly my views on this are personal. I know of no guidelines that have been put out by people such as the New Zealand Medical Council, New Zealand Medical Association or the New Zealand Orthopaedic Association. While I would not deny a patient the use of a tape recorder during a consultation, I do believe that it would alter the normal Doctor/Patient relationship that one has in a consultation. The mere fact of a patient wanting to use a tape recorder would immediately suggest there was a degree of mistrust existing in the relationship at the time of consultation. One would be very careful with the language used to avoid any double meanings. One would probably not express their views freely, again for fear of that being interpreted in the wrong direction. Quite often a letter written following a consultation is done so in the situation where the Doctor has just a little more time to think about things. At times a particular train of thought that you had during a consultation may seem incorrect when

that is reviewed in your mind as you are dictating the notes and letter following this. Having said this, I personally would not prevent a patient from tape recording a consultation. More specifically I would not personally refuse to see a patient who wished to tape record the consultation. I have certainly been informed by patients at times that their Review correspondence as presented to ACC by the Doctor involved in the Review, does not contain the same findings and opinion that the patient felt they were leaving the Consultation with. I cannot be more specific about that."

The Review Hearings

[36] The Reviewer upheld the submissions of the insurer in these terms:

"It is not in dispute that it is reasonable for Catalyst to require Mrs Jackson to be assessed and indeed I find that it was a reasonable requirement made in accordance with section 115: The issue is whether Mrs Jackson is in breach of her responsibilities under section 115 by insisting on having the assessment tape-recorded.

While Mrs Jackson may have the right to request that the assessment be mechanically recorded, in my view it is the medical practitioner's discretion whether to allow this. And it would certainly not be unreasonable for the medical practitioner to refuse. Having considered the correspondence from Dr Ruttenburg and Dr Howard, both professionals and specialists in their fields, I find that the presence of a tape recorder undermines the `tenor' of the assessment. It creates an adversarial climate, which is clearly unhelpful in the conduct of a medical assessment. I agree with Mr Tui's submission that it amounts to an attack on the integrity of the assessor and destroys the doctor-patient relationship.

Just as an insured has the right to refuse treatment, he or she has the right to refuse to be assessed by a registered medical practitioner. Provided the insurer's requirement for the insured to attend treatment or be assessed is reasonable, the consequences of refusal are that entitlements under the Act may be suspended. Therefore the insured must choose between exercising the right of refusal on the one hand, and entitlement to benefits under the Act on the other.

Mrs Jackson has not refused per se to attend the assessment; rather she has attempted to dictate the conditions under which assessment may take place. Those conditions are quite plainly unacceptable to Dr Ruttenburg, to Dr Howard and no doubt to other specialists also. I have already found that it is reasonable for them to decline to be involved with a patient who dictates the conditions under which an assessment is conducted. Therefore, by insisting on those conditions before agreeing to the assessment, I find that Mrs Jackson is effectively refusing the assessment.

The correspondence on the file shows that Mrs Jackson was fully aware of the consequences of maintaining her stance on tape-recording the assessment. It is Mrs Jackson's insistence on taping the assessment that has prevented it from going ahead. In my view it was unreasonable for Mrs Jackson to insist on tape-recording when the medical practitioner had declined to carry out the assessment under those circumstances.

Mrs Jackson was accordingly in breach of her responsibilities under section 115 of the Act and Catalyst was entitled to suspend her entitlements."

[37] He comments on Mrs Jackson's failure to take advantage of the offer by the insurer to consider a report from a specialist of her choice in these words:

"I note however that Catalyst has attempted to accommodate Mrs Jackson both by arranging an assessment to be undertake by another assessor (Dr Howard) and by offering to pay for an assessment by any approved Occupational Medicine Specialist of Mrs Jackson's choice. It was not required of Catalyst to offer this option, as the legislation makes it plain that Catalyst may specify the medical practitioner to carry out the assessment. To paraphrase Judge Middleton's comment in Beadle (see above), there was no need for Catalyst to offer this choice, which constituted clear evidence of the sensitivity by which Catalyst endeavoured to assist Mrs Jackson. It is difficult to think of anything else that Catalyst might have done in all the circumstances."

[38] The Reviewer then, with respect, confuses these two quite distinct questions by saying:

"Catalyst originally sought the assessment in November 2000 and still no progress has been made. It is unfortunate that this impasse has been reached It can however be overcome at any time if Mrs Jackson agrees to attend an assessment without insisting on tape-recording the assessment (where the assessor refuses to permit it).

The Appeal

[39] After hearing, helpful arguments from Mr Maassen and Mr Kerr, I concluded that there is a general question of principle, which I have summarised at paragraph 1, touching the doctor/patient relationship.
[40] It may be approached at two levels, factually and conceptually.
[41] As to the first, there is evidence both ways, both Dr Ruttenberg and Dr Keir Howard say that they know of "no medical practitioner who would allow the proceedings of a medical consultation to be tape recorded by a third party."
[42] Dr Keir Howard adds that this is particularly so where the:

"recording is likely to be used in an adversarial setting and could be used against the practitioner."

[43] Indeed he says that his professional indemnity insurers "would not countenance such action" .
[44] Dr Brougham, on the other hand, says he would not refuse to see a patient "who wished to tape record the conversation" .
[45] It cannot, therefore, be said that the views of Drs Ruttenberg and Keir Howard are so widely held within the medical profession that the Court could take judicial notice of them.
[46] Neither is it readily apparent that their views are so compelling as to demand wide acceptance such that a person like Mrs Jackson is deemed to have refused an examination because she does not share those views.

[47] The bases upon which the doctors hold these views, as stated in their correspondence, are:

a) That to tape record the proceedings "would alter the tenor of the

examination which was meant to be an independent medical assessment and not a taped legal assessment." (Dr Ruttenberg)

It is difficult to know precisely what Dr Ruttenberg means by a

"taped legal assessment" . Presumably he means that what is said at the examination will, or might, be used in evidence in some later legal proceeding. If that is so, then it is a tenuous basis for the doctor to refuse to examine a patient.

A report arising from the examination would be admissible in a

Court or Tribunal (subject to all just exceptions). The report will be based in part on what is said by both doctor and patient at the interview. There can be no objection to ensuring that what is said is accurately recorded and not subject to any avoidable misunderstandings.

Indeed it is that very circumstances on an earlier occasion

which prompted Mrs Jackson to want a taped record.

Although it obviously comes as a surprise to some medical

practitioners to have their actual utterances, and those of the patients recorded, it is quite commonplace in other relatedcallings . Thus in most Courts now the Registrar keeps a verbatim aural recording of everything said by the participants, including the Judge. This goes beyond the recording of t vidence. It can be and is used for purposes collateral to the merits of the dispute. More laterly, this has been extended to video taped recording of Court proceedings by the media. Similarly, in the case of interviews with the media where both sides want to be sure of precisely what is said.

There are, of course, other examples, such as Police interviews of suspects.

The question is whether there is anything about the doctor/patient relationship which as a matter of fact requires a prohibition against a verbatim tape recording of what is said.

All that it can be said with certainty is that the possibility the

results of the interview may one day be used in evidence at a Court proceeding cannot be a ground for refusing to allow a recording to be made.

To the contrary, if that is the factual basis for the objection, it is plain that where the record of what was said comes into dispute, it is better that the record be accurate.

B) That no medical practitioner would allow such an innovation. As the

evidence establishes, this is factually incorrect.

The tape recording might be used against the medical practitioner.

That of course is true, as may any written report arising from the examination if the doctor gets something wrong.

That the doctor's insurers would not "countenance such action":
There is no evidence of this and it seems inherently

improbable. It is a matter of every day experience that insurers in fixing premiums and deciding on cover seek more relevant information net less. It is very much to their advantage in and settling or fighting claims to have the best evidence of what took place involving the doctor in any impugned conduct.

There must be many cases where difficult patients might be

tempted to distort events for some pecuniary or other advantage. An accurate recording of what took place would be a great advantage in such circumstances.

iii) If on the other hand the tape recording discloses that the doctor

has said or done something which gives rise to a call on the insurer, it is better that it is known early so that the case can be properly managed. In this way the doctor might be spared unnecessary embarrassment, worry, and possibly expense.

e) That a tape recording is an aspersion on the doctor's integrity.

Whereas one can understand that a doctor would prefer, even expect, to have his or her account of what took place at a medical examination accepted without question, we are none of us perfect. All are liable to error or misreporting.

[48] It is difficult to see, setting aside professional pride, why a doctor should feel any more affronted in having a verbal exchange with a patient taped, than should a Police Officer or a Judge.

[49] To do so is not an aspersion on integrity, it is merely a reflection on fallibility. It is obvious, given a moment's thought, that as often as not an accurate verbatim record may well enhance a doctor's integrity.
[50] For these reasons, I am satisfied that none of the factual objections raised by the doctors to the tape recording of examinations have any merit.
[51] Turning then to the possible conceptual objections.
[52] It seems that at the heart of the doctor's concern is the very special nature of the doctor/patient relationship. The need for absolute frankness concerning what are frequently very, very intimate matters. The inference from this seems to be that electronic recording will damage this relationship, presumably resulting in a less open and frank exchange of information.
[53] It is difficult to see why this should be so when the request to record comes from the patient not the doctor. To the extent that privacy and privilege attaches to this relationship, it is that of the patient to enforce or to waive.
[54] Such protections are not there to shield the doctor from liability for mistakes or the consequences of inaccurate reporting. They certainly do not exist to put the patient in the position of competing with the doctor for credibility when differences arise between them as to what was said and done.
[55] Then there is the matter of "natural justice" raised by the appellant. Counsel submits that to refuse Mrs Jackson the right to tape the medical examination is to deny her "natural justice".
[56] Reliance is placed on dicta of Lord Bridge in R v Secretary for State for the Environment ex parte Hammersmith [1991] UKHL 3; [1991] AC 521 and Lloyd v McMahon [1987] UKHL 5; [1987] AC 625 to the effect that the principles which actuate procedural fairness are "not engraved on tablets of stone".

[57] It is submitted that as a medical examination for the purposes of an assessment pursuant to s.115(1)(d) contributes to a possible loss of a valuable entitlement then it ought to be conducted with procedural safeguards which exist in the case of a judicial hearing, or some classes of administrative actions.

[58] With respect, I think this is a blind alley. Although medical practitioners can be expected to listen to what a patient says, in no sense is the doctor conducting a hearing or making a decision. At best the doctor gives an opinion to the respondent about the medical condition of an applicant for a benefit.
[59] The respondent may or may not accept that opinion in coming to its decision, afid the patient has the right to challenge an adverse decision.
[60] In saying this, I am conscious that a patient may feel aggrieved or even helpless in the face of a factually incorrect medical opinion and in that sense the opinion might be said to render an adverse decision inevitable. But there are two objections to this: Parliament has done its best to safeguard the rights of the patient by way of reassessments, and the review and appeal process. Secondly, patients have rights against the doctor if some negligent misreporting losses them a benefit to which they are otherwise entitled.
[61] I think it would be wrong to confuse the question for decision in this case by introducing into the doctor/patient relationship concepts fashioned to serve some quite different purpose.
[62] The appellant next relies upon the proposition that she has an absolute right to ask that her medical examination be tape recorded unless the respondent can point to some rule of common law or statute which proscribes or prohibits the exercise of that right. Reference is made to Entrick v Carrington [1765] EWHC J98; (1765) 19 St Tr 1030 and Ministry of Transport v Payne [1977] 2 NZLR 50.
[63] Counsel for the respondent does not quarrel with this analysis but by reference to a number of cases submits that Mrs Jackson's right to tape the proceedings must be set against Dr Ruttenberg's "right" to control the ambience in which he conducts or medical examination of Mrs Jackson.
[64] This with respect is to confuse two quite distinct sets of expectations.
[65] Inherent is the respondent's argument that before Mrs Jackson can have the right to insist the examination be tape recorded, it must be shown that the doctor has a "duty" to carry out the examination in those circumstances (see Hohfeld; Fundamental Legal Conceptions, W W Cook 1923).
[66] Clearly it is impossible to assert such a "duty", and therefore the claimed "right" is not one recognised by the common law.
[67] That, however, does not dispose of the matter because it is open to the appellant to assert that she has the `privilege" or "liberty" to ask for a tape recorded examination. This privilege does not imply or create any corresponding duty on the doctor to conduct the medical examination in circumstances where the privilege is claimed.
[68] In my view, the doctor has the "privilege" or "liberty" to decide in what lawful way the medical examination will be conducted. He is thus entitled to say that he will not examine Mrs Jackson if she insists on having a tape recording of the procedure. This imposes no duty on her to participate in a medical examination on those terms.
[69] The confusion of "rights" with "privilege" and the injustices that result are illustrated in the speech of Lord Lindley in Ouinn v Leatham [1901] UKHL 2; [1901] AC 495 p 534. In that case his Lordship confused the privilege of pursuing one's trade calling with a right not to be interfered with. That confusion is at the heart of the right claimed by Mrs Jackson in this case, for which there is no correlative duty upon Dr Ruttenberg. If the object she pursues is expressed as a "privilege" then the confusion disappears.

New Zealand Bill of Rights


[70] Viewed in that way, I do not think it necessary to embark on a consideration of counsel's reliance on the New Zealand Bill of Rights Act 1990.

Reasonableness of the Exercise of the Privilege

[71] The only remaining question is whether or not the statute implies an obligation upon Mrs Jackson to exercise her "privilege" in some objectively reasonable way.
[72] Section 115 imposes on all claimants a "responsibility" to "undergo an assessment by a registered health professional specified by the insurer at the insurer's expense."
[73] The claimant must do this "when reasonably required to do so." clearly the only statutory requirement of reasonableness relates to the "when" of the examination, not the "how".
[74] However, it is clear from s.115(d) that the insured has the statutory right to specify which doctor will carry out the examination, and it is the appellant's duty to attend on that doctor and "undergo assessment".
[75] The difficulty which arises is, on the one hand, whether or not a claimant can insist on conditions upon which she consents to the assessment. And on the other hand, whether or not the doctor alone can specify the conditions under which the examination will take place.
[76] The problem is compounded by well understood, longstanding practices. In the ordinary way, a patient presents to the doctor for examination at the time, place and in the manner best suited to the exigencies of the case. Thus the examination might take place at a doctor's surgery, or a hospital bed, or at the patient's home or some other place such as a roadside following an accident. The manner of the examination will vary depending on those and other circumstances. Thus the examination of a comatose person will be quite different from that of a sentient person, a baby different from an adult, etc.

[77] It follows that there is no correct way of conducting a medical examination (although there are clearly many wrong, even illegal, ways of doing so).

[78] It is necessary to narrow the focus to the sort of examination, Mrs Jackson was lawfully required to undergo in this case. That was to take place at the doctor's surgery. He allowed the appellant to have present her husband and advocate. There is no suggestion that all three were able, as best their powers of memory allowed, to memorise what was said and done. Equally, there is no suggestion that any one or more of them was prohibited from taking a verbatim note.
[79] It is against those circumstances that it is necessary to consider the request by her to use a tape recorder.
[80] Unless Dr Ruttenberg has the unqualified right to specify how the examination is to proceed, and for the reasons given earlier I am satisfied he does not, it then becomes a question of balancing the reasonableness of the exercise of their mutual privileges. First the doctor: I know of no principle in the medical profession analogous to the "taxi rank" convention observed by banisters which requires a banister to render the services sought as long as the necessary expertise and time are available and the fee paid.
[81] No doubt it is central to the Hippocratic Oath that a doctor will "prescribe regimen for the good of my patients according to my ability and judgment and never do harm to anyone" which loosely translated may be taken to mean that a doctor will always treat a medical condition known to be present in a patient to the best of the doctor's ability.
[82] There is, however, nothing in the oath which touches upon the provision of an expert medical opinion, and I am referred to no requirement that a doctor is obliged to give one merely because asked to do so. Equally, it seems clear that in deciding to examine a person for the purposes of giving an opinion, the doctor may prescribe the terms. They would conventionally include such matters as: the date, time and place, the type of examination required, whether any bodily samples are necessary, whether or not a nurse needs to be present, and the like.
[83] An examinee who took exception to such ordinary requirements and declined to attend an examination on such terms would, in the ordinary way, be said to be refusing to submit to an examination. That is the patient's privilege but would clearly have adverse consequences in terms of s.115.
[84] The same, however, could not be said if the doctor insisted on some unusual or illegal precondition or practice in the examination and report. It is idle to multiply examples, suffice to say, a patient is not obliged to submit to an examination in which a doctor engages in some criminal behaviour such as indecent touching.
[85] In my view, it is clear, beyond argument, that a patient declining to participate in an examination in such circumstances could not be deemed to have failed to discharge the obligation imposed by s.115(d) to "undergo" an assessment.
[86] Viewed in that way, it becomes a question of fact in each case. The precondition insisted on here is the refusal to allow Mrs Jackson to tape record the proceeding.
[87] For the reasons given earlier when discussing the factual considerations, I am of the view that there was no rational basis for the doctors imposing this condition. I am equally of the view that given the history of Mrs Jackson's perception of her dealings with the respondent and specialists appointed by it, her request to tape the examination was a reasonable exercise of her privilege to do so. She cannot therefore be said to have impliedly refused to undergo the examination.

Offer of Self Appointed Specialist

[88] That leaves the respondent's offer of 14 June 2001 to Mrs Jackson that she obtain her own "assessment from an independent occupational medicine specialist (ACC approved and FAFOM qualified)."
[89] I have no doubt that this offer was a well intentioned attempt to break the impasse created by the refusal of Drs Ruttenberg and Keir Howard to examine the appellant. There are, however, two problems about it:
[90] The offer is limited to that class of specialists approved by the respondent.
[91] Assuming that this condition can be satisfactorily managed, there is a more fundamental objection.
[92] Mrs Jackson was in receipt of "statutory entitlements" from the insurer. One of the "powers" vested in the insurer is the right to require a recipient of such entitlements to undergo "when reasonably required to do so by the insurer" a medical assessment by a doctor "specified by the insurer". Section 116 allows the insurer to suspend paying entitlements:

for as long as the insured unreasonably refuses or unreasonably fails to—

(a) Comply with any requirement of this Act relating to the insured's claim; or ...

[93] The relevant "requirement" here is that she undergo an assessment.
[94] Once it is established that Mrs Jackson has not unreasonably failed to undergo the assessment then the insurer's "power" to suspend payment of entitlements ceases. It cannot be revived by telling Mrs Jackson to arrange for her own assessment. That is not how the statute is cast. The power to suspend is triggered by the insurer requiring the insured to undergo a medical assessment by a doctor "specified by the insurer". No such "specification" can be read into the letter of 14 June. The only fair inference is that the appellant is being told that she will lose her entitlements until such time as she arranges for the necessary medical assessment which satisfies the insurer that she is entitled to continue to receive them.
[95] Given the imbalance between the powers and resources of the insurer and the insured, Parliament cannot have intended this gloss on the clear provisions of ss.115 and 116.
[96] Finally, I would observe that the existence of an accurate and secure tape recording of a medical interview may obviate the necessity, as was felt in this case, for an insured to insist on having present at a medical assessment somebody who holds themselves out as an "accident compensation complaints advocate".

[97] I can well understand the doctors' concerns that in such circumstances every gesture and utterance might be observed and noted for use in some later litigation.

[98] If the case had depended on the question of a right to have such advocates present at a medical examination, the outcome may well have been different. It needs to be said that an assessment pursuant to s.115 involves experienced and impartial medical professionals, who, beyond their fee, have no pecuniary or other interest in the outcome. Whereas a patient might feel more comfortable in having present a member of family or a friend to give some moral support. I doubt that there would be many circumstances in which it would be reasonable to insist in having one's lawyer or "advocate" present at such an assessment.

Decision

[99] I am therefore satisfied that there was no legal or factual basis upon which the insurer was entitled to suspend the appellant's entitlements.
[100] The appeal is allowed and it is ordered that the statutory entitlements which Mrs Jackson enjoyed at the date of suspension (3 May 2001) be reinstated effective from that date, together with such interest as might be payable pursuant to s.101.

Costs

[101] The appellant has succeeded and in the ordinary way will be entitled to costs. The point involved in the appeal is of general application, and resulted in the appellant being put to the cost of further submissions. Those are matters to be taken into account in fixing quantum. If the parties cannot agree on a figure, they may file and serve memoranda. The appellant within 10 working days of receipt of this judgment. The respondent within 5 working days of service of such memorandum.

Addendum


[102] Before parting with the case, it may be helpful to observe that the circumstances giving rise to this litigation will no doubt be novel to some members of the medical profession, both in relation to ACC work, and possibly beyond.
[103] It is clearly undesirable that such cases be dealt with on an ad hoc basis, and it might be that the governing bodies of the relevant medical specialities may wish to consider the matter.
[104] If aural tape recording of examinations is to be available to doctors and/or patients, then it is desirable that there be developed procedures governing its use. Matters such as the security and custody of the tape recording, and the purposes to which it might be put, and questions of privacy could be thought through and protocols established.
[105] These technical aspects of the matter have been confronted by the Police and Courts in recent years and some useful guidance may be had from those quarters.

Signed at: 3.25 am/pm on: 25th June 2002

AA P Willy

District Court Judge

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