Survey of methods for the rating of psychiatric impairment in Australia

One of the enduring clinical issues in the assessment of plaintiffs in personal injury and workers' compensation claims, as well as applicants for social security and disablement benefits, is that of the evaluation of impairment and work incapacity. Many writers on this topic confuse the concepts of impairment and disability, and similar confusion is reflected in a number of the rating methods that purport to evaluate impairment but in reality assess disability. In Australia there are 20 distinct statutory schemes for workers' compensation, motor accident compensation, and social security and other benefits, which utilise a variety of methods for the rating of psychiatric impairment. Recent legislative changes designed to restrict access to personal injury compensation at common law, which in two Australian State jurisdictions require the use of impairment rating scales, also specify the rating methods to be used in the assessment of psychiatric impairment. This article discusses the concepts of impairment and disability as defined by the World Health Organisation, and reviews the various methods for the rating of psychiatric impairment that are specified by statute in the federal and State jurisdictions in Australia.     

LESSENING THE STING OF ASFA: THE REHABILITATION‐RELAPSE DILEMMA BROUGHT ABOUT BY DRUG ADDICTION AND TERMINATION OF PARENTAL RIGHTS

Congress passed the Adoption and Safe Families Act of 1997 (ASFA) as a response to children waiting in foster homes for years without permanent placement. In addressing the problem of permanency, however, Congress set a strict limit on how long a child could be in foster care (15 out of the most recent 22 months) before a state must either commence a proceeding to terminate parental rights or else lose valuable federal funding. Due to health care funding schemes and quality of treatment, this requirement, in particular, negatively impacts parents currently in drug rehabilitation whose parental rights may be permanently terminated before a realistic chance to recover is permitted. Although ASFA requires that states make “reasonable efforts” to keep families united, it does not define “reasonable efforts,” leaving parental rights and family unity subject to a chaotic interpretation of this requirement from state to state. “Reasonable efforts” should be interpreted to take into account current drug addiction and recovery research and drug court programs should be used to facilitate this goal. Research has shown that focusing on adequate treatment saves states money and improves the lives of children and their families, reducing the need for reliance on termination of parental rights.     

Judicial responses to the protected confidential communications legislation in Australia

The article examines the background, aims and scope of recent legislation enacted in New South Wales, Victoria and South Australia to protect from disclosure in court of "confidential communications" generated in the context of counselling persons who allege that they were victims of sexual offenses. In drafting the "confidential communications" legislation, the legislators undertook a difficult task of balancing the public interest in therapeutic confidentiality that would encourage victims of sexual assaults to report these offenses and seek psychological and psychiatric care on the one hand, and the public interest in fairness of the trial, which may be prejudiced by exclusion of evidence pertinent to the forensic process on the other. In South Australia this task was fulfilled with greater success than in New South Wales and Victoria.     

Substituted consent: from lunatics to corpses

This analysis traces the origins and evolution of the doctrine of surrogate or substituted judgment, especially its application to medical treatment, including non-therapeutic sterilisation, decisions regarding life and death choices, and more recently, removal of sperm or eggs from incompetent, dying or dead males and females. It argues that the doctrine, which has been acknowledged to be a legal fiction, has an effect of devolving legal and moral responsibility for life and death choices, as well as non-consensual, non-beneficial intrusive procedures, from the competent decision-makers to the incompetent patient. It focuses on the subjective nature of the substituted judgment standard; the problematic nature of evidence propounded to establish the putative choices of the incompetent person; lack of transparency relating to the conflict of interest in the process of substituted judgment decision-making; and the absence of voluntariness, which is an essential element of a valid consent.