June 2020

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Court bans examination’s audio recording


by Stanley Drummond*


The WA Supreme Court has refused a request by a superannuation fund member claiming a disability benefit for permission to make an audio recording of a his medical examination being arranged by the fund’s insurer.

The decision is Longbottom v Nulis Nominees (Australia) Ltd [2020] WASC 21.

Super fund member Steve Russel Longbottom claimed a disability benefit for an alleged psychiatric illness. He had already served evidence from a psychiatrist of his choice.

The insurer, MLC, wanted the member examined by another psychiatrist, Dr Gemma Edwards-Smith. Mr Longbottom’s lawyer indicated by email that the examination would be recorded.

MLC’s lawyer responded by email saying recording a psychiatric examination was “highly unusual” and Dr Edwards-Smith’s rooms had indicated it would not be permitted because of privacy legislation and if Mr Longbottom replayed the recording it could pose a risk to his mental health.

The email said if Mr Longbottom attempted to record the examination, Dr Edwards-Smith would terminate the assessment.

The insurer sought an order the member submit to the medical examination, which was  opposed.

Neither the insurer nor Dr Edwards-Smith objected to the member having a medical adviser or a support person present at the examination.

However, Dr Edwards-Smith said it was inappropriate to record the interview. Master Sanderson said the question was “whether it was in the interests of justice to permit the [member] to attempt to record the examination, being mindful that the likely outcome of his attempting to do so was that Dr Edwards-Smith would not undertake the examination and [MLC] would be denied the opportunity to have Dr Edwards-Smith’s opinion”.

He said Mr Longbottom’s argument was “straightforward”. His counsel argued that, because he would attend the examination accompanied by a support person and a medical practitioner, there was no reason why the consultation should not be recorded.

“If a dispute arose as to what was said during the consultation the [member] could call either or both the accompanying persons to give evidence supporting his version of events. Rather than rely on the [member’s] memory and the memory of the two accompanying persons an audio recording would settle all disputes,” Master Sanderson said.

Mr Longbottom’s counsel said an audio recording would indicate the tone in which the consultation took place. So, for instance, if Mr Longbottom alleged Dr Edwards-Smith was antagonistic or sarcastic, that would emerge clearly from the audio recording.

“There is much to be said for courts embracing advances in technology. Although the order does not by its terms anticipate an audio or audiovisual recording of a medical consultation it is clearly designed to offer some protection to a person submitting themselves to a medical examination,” Master Sanderson said.

“The common law position ... makes no mention of a right by a party who is medically examined to have his or her medical practitioner present. That suggests the present form of the rules was designed to protect the position of the party being examined. It is at least arguable on that basis, a plaintiff who seeks further protection by recording a consultation should be entitled to do so.”

However, the court was satisfied Dr Edwards-Smith’s view was “decisive”. She said if there was a dispute about the “tone” of the interview, Dr Longbottom’s position “was adequately protected by the attendance of a support person and a medical practitioner”.

“It is open to question whether any recording could add anything further to the way in which the consultation was conducted,” Master Sanderson said.
The WA Supreme Court decided:

• The member should submit himself for medical examination by Dr Edwards-Smith at a specified time and place.
• A medical adviser chosen by the member was entitled to be present at the examination.
• Neither the member nor his medical adviser was permitted to record the examination by audio or visual means.
• The insurer could apply for an order the action be stayed.
• The member should pay MLC’s costs of the application.

* Stanley Drummond (sdrummond@tglaw.com.au) is a partner at Thomson Geer.

 
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