To Write or not to Write: that is the (medico-legal) question
Nerissa Ferrie
Manager, Advisory Services, MDA National
Kate Rowan-Robinson
Medico-legal Adviser, MDA National
Doctors are often asked to write medico-legal reports which could have a significant impact on a patient’s financial situation. We look at two of the more common requests, and the medico-legal issues you should consider before providing a report.
Total and permanent disability
Doctors often feel conflicted when patients seek written confirmation of total and permanent disability (TPD). What should you consider before completing a TPD form?
What is TPD?
Definitions can vary according to the terms of the policy. A patient may be eligible for a TPD payment when they lose the ability to work in their own profession. More commonly, eligibility is triggered if a patient can never return to any occupation reasonably suited to their education, training or experience.
This is a fairly high threshold, and you must read the wording carefully before you sign a TPD form, in accordance with 10.9.1 of the Medical Board’s Good Medical Practice: A Code of Conduct for Doctors in Australia.¹
Things to think about
- How old is the patient, and when did they become disabled?
- Is there objective evidence of a permanent disability?
- Is the patient compliant with treatment recommendations?
- Has the patient reached maximum medical improvement?
- Factor in any comorbidities, psycho-social influences, education and work history.
Should I sign the form?
Medico-legally, you should exercise your best clinical judgement based on information available to you at the time, and document this clearly in the notes.
Consider a referral to an occupational physician if necessary, and don’t allow anyone to pressure you into completing the form if you don’t feel it is appropriate to do so.
If you support the patient’s TPD claim, you can complete the form as requested. Consider advising the patient that if they opt to rejoin the workforce without any identifiable improvement to their disability (i.e. new treatment or surgical intervention), it may be difficult for you to provide a certificate of fitness.
Early release of superannuation funds
What should you be aware of before you support a patient’s application for early release of superannuation; when should you support the application; and what are the medico-legal risks?
High inflation and cost-of-living pressures can affect the affordability of medical treatment for some patients, leading to an increase in applications for early release of superannuation on compassionate grounds.
In 2022-2023, the ATO received 75,600 applications for early release of superannuation, resulting in the approval of 41,800 applications, totalling $761.7m in funds withdrawn.²
Eligibility
To be eligible for the compassionate release of superannuation, the patient must meet two conditions.
- Firstly, the medical treatment must be necessary to:
- treat a life-threatening illness or injury (a medical condition likely to result in severe degeneration or death within 12 months);
- alleviate acute or chronic pain; or
- alleviate acute or chronic mental illness.
Secondly, the proposed medical treatment cannot be readily accessed through the public health system.
Application
To make an application, support is required from two medical practitioners (with at least one being a relevant specialist) who can each provide a report on the patient’s eligibility to access their superannuation early.
Eligible treatment includes surgery, psychiatric treatment, medicinal drugs, in-vitro fertilisation treatments and dental treatment.
You must be comfortable that the proposed medical treatment is necessary for the purpose of managing a life-threatening condition, alleviating pain, or alleviating mental illness. The ATO provides guidance on how to complete the report.³
Overseas treatment
If the patient intends to access medical treatment overseas, there may be additional considerations before you provide a report in support of the treatment. The patient should consider the destination, healthcare facilities, qualifications and experience of medical providers, the proposed procedure, treatment aftercare, and insurance.
In the event the treatment goes wrong, there may be an implication that you approved the overseas treatment by supporting the application for early release of super.
Summary
Good Medical Practice: a code of conduct for doctors in Australia1 requires medical practitioners to be “honest and not misleading when writing reports and certificates, and only signing documents you believe to be accurate”.
So you need to be certain the patient meets the eligibility criteria before providing a report. It is also important to remember that the other doctor providing a report may also be providing the treatment, and may therefore have a vested interest in the application being approved.
Managing requests for the compassionate release of superannuation can be difficult to navigate – particularly if you don’t feel comfortable providing the report. If you find yourself in a challenging situation with an unhappy patient, you should seek further advice from your medical indemnity provider.
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This article is provided by MDA National. They recommend you contact your indemnity provider if you need specific advice in relation to your insurance policy or medico-legal matters. The case study is fictitious. Any resemblance to real persons, living or dead, is purely coincidental. MDA National Members can obtain advice on freecall 1800 011 255 or use the ‘Contact Us’ form at mdanational.com.au.