Order for Medical Examination under the Uniform Civil Procedure Rules

State of New South Wales v Hollingsworth [2023] NSWCA 152

The Respondent, Mr Hollingsworth, was arrested and taken into custody by the NSW Police Force. He commenced proceedings in the District Court against the Appellant, the State of NSW, for false imprisonment, assault and battery. The Respondent alleged that the incident worsened his pre-existing post-traumatic stress disorder [PTSD].

The Respondent relied upon expert medical reports from a consultant forensic psychiatrist in support of his claim. The Appellant requested the Respondent undergo an assessment with a psychiatrist, Dr Apler. The Respondent agreed, on the condition that he was allowed to electronically record the interview by audio, or audio-visual means. Dr Apler refused the request and the assessment was ended by Dr Apler after the Respondent refused to stop recording the assessment. The Appellant then organised for Dr Brown, forensic psychiatrist, to assess the Respondent. Dr Brown indicated that she would not permit her assessment to be recorded. The Respondent indicated that he would record the assessment and therefore the assessment was cancelled. The Appellant contacted five other psychiatrists who all indicated that they would not permit the assessment to be recorded electronically.

The Appellant filed a Notice of Motion seeking an order under Rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to the District Court requiring the Respondent to attend an assessment with a psychiatrist without electronically recording the assessment. On 6 March 2023, Judge Levy SC [primary judge] refused the application and ordered under Sch 7, cl 5(c) of the UCPR that any forensic psychiatrist appointed by the Appellant to examine the Respondent is to allow the Respondent to record the audio of the entire assessment.

Appeal

The Appellant sought leave to appeal on the following two grounds:-

• The primary judge erred in the exercise of discretion by ordering that any forensic psychiatrist appointed by the Appellant is directed to permit the Respondent to make a sound recording of the assessment and must provide a written undertaking to abide by that direction;
• The primary judge should have made an order pursuant to r 23.4 of the UCPR, directing the Respondent to attend an appointment with Dr Brown, with the Respondent not to be permitted to make an audio-visual recording of that appointment in the absence of consent from Dr Brown.

Decision

Stern JA noted that the primary judge made his orders pursuant to Schedule 7, Clause 5 (c) of the UCPR. Stern JA stated that Clause 5 of the UCPR provides the Court with powers to direct experts to confer and produce a joint report in a timely matter but does not confer powers to the Court to make orders binding expert witnesses as to the manner in which they exercise their own professional judgment. Stern JA stated the primary judge erred when using Sch 7, cl 5(c) as the source of the powers to make the Orders, as no such power was conferred.

The Appellant submitted that it was entitled to have the Respondent assessed by an expert of its choice. Stern JA noted the primary judge’s reasoning’s failed to consider the important right of the Appellant to have the Respondent examined by someone of the Appellant’s choice. Stern JA stated the primary judge’s discretion miscarried in a way that materially affected the result.

The Appellant submitted that the primary judge considered an irrelevant consideration by giving weight to the Respondents ‘right to make a recording’. The Respondent claimed that the “right to record was founded upon the right to equality before the law, the right to liberty of the person and bodily autonomy, the right under UCPR, r 23.5 to have a doctor attend the assessment, the freedom within society to do that which is not prohibited, and the right to have reasonable adjustments to medical services under the Disability Discrimination Act 1992 [DDA].” Stern JA rejected the Respondent’s argument and noted that no such ‘right’ flows from the principle of equality before the law. Stern JA also noted that the right to bodily integrity does not confer a right to record a medico-legal assessment nor does the DDA establish any right which the primary judge relied upon. Stern JA stated that the primary judge erred by considering the ‘right’ of the Respondent and his discretion miscarried in a way which materially affected the result.

Mitchelmore, Stern JJA and Basten AJA allowed and granted the appeal, and ordered that under UCPR, r 23.4, the Respondent was to submit to an assessment by a psychiatrist instructed by the Appellant, irrespective of whether that psychiatrist permits him to record the assessment by audio or audio-visual means.

Implications

This decision confirms that a party has the right to instruct an expert of its choice. It also confirms that Plaintiffs do not have the right to record any assessments by audio or audio-visual means without the express permission of the expert and the Court does not have the power to compel the expert to allow the appointment to be recorded.

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