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NSW Supreme Court clarifies approach to requests for medical examinations

NewsFlash 04 April 2014

A 28 March 2014 decision by Justice Garling of the NSW Supreme Court 1 has clarified the process for assessing requests for medical examinations under Rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’).

The application

The plaintiff alleges that as a result of birth asphyxia she suffers from consequential cerebral palsy and intellectual disabilities. Evidence in the proceeding is that the majority of the plaintiff’s need for care and assistance arises from her moderate to severe intellectual impairment, rather than her mild physical disabilities. Expert evidence suggested that the difference between the plaintiff’s mild physical impairment and her severe cognitive impairment could arise from an underlying genetic abnormality. The defendant sought to investigate the possibility of a genetic abnormality on the basis that it may provide evidence of an additional cause of the plaintiff’s cognitive impairment. This would require the provision of a blood sample for genetic testing.

Despite support for the application from a number of existing Supreme Court and Court of Appeal decisions 2, requests for a voluntary blood sample were rejected by the plaintiff. The defendants then applied to the NSW Supreme Court pursuant to UCPR 23.4.

Relevant Rules

UCPR 23.4 applied because the plaintiff’s physical or mental condition is relevant to a matter in question in the proceeding. 3

UCPR 23.4 provides that:

(1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place.

(2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.

The decision

His Honour held that the relevant evidence and principles warranted orders requiring the blood sample be provided and conduct of the genetic test.

Previous decisions regarding UCPR 23.4 have not expressly stated what evidence and factors contributed to determination of the relevance of the proposed test to the proceeding, and what issues form part of the Court’s discretion. Justice Garling’s judgment is significant in that His Honour applied a 3-step process for assessing whether to exercise the Court’s discretion to grant an application under UCPR 23.4:

1. Determine the relevance of the proposed test or examination to the proceeding

Justice Garling noted that in considering relevance “it is sufficient for the Court to be satisfied that there is an issue of substance which will be illuminated by the results of the tests which it is proposed to be undertaken.” 4

His Honour considered the varying expert opinions and found that a test result enabling the Court to attribute some (if not all) of the plaintiff’s cognitive disability to an underlying abnormality could result in a substantial reduction of the claim for damages. In response to the plaintiff’s submissions that the defendant was “on an exercise of fishing” 5 and that the result of the test (in the opinion of the plaintiff’s expert) was unlikely to show an alternate cause for the plaintiff’s intellectual disabilities, His Honour noted “The court does not have to be satisfied that the issue will ultimately be determined in the [testing party’s] favour.” 6

2. Identify and consider factors that tell against ordering the test or examination

Justice Garling identified three issues in the evidence before the Court that cautioned against ordering the proposed test:

  1. The plaintiff reportedly suffers from anxiety and phobia regarding needles;
  2. The plaintiff reportedly suffers from anxiety regarding medical appointments; and
  3. Ethical concerns regarding the obtaining and use of information regarding the plaintiff’s genetic structure.

His Honour held that the plaintiff’s needle phobia alone was not a sufficient factor to require the application be refused, particularly given the lack of reaction or opposition to previous vaccinations and noting evidence that mild sedatives could easily address these concerns. There was also evidence that the plaintiff’s parents had developed strategies to minimise her fear of medical appointments, with His Honour finding that similar strategies could be employed regarding the proposed test. In relation to the use of genetic information obtained via the proposed test, His Honour identified that such concerns would depend on the outcome of the test and noted that the plaintiff’s litigation tutor could apply for orders restricting use and/or publication of that material.

Overall Justice Garling concluded that the evidence did not identify “a particular reason which tells against the test”. 7

3. Consider whether the Court should exercise its discretion to order the proposed examination or test

His Honour found that an exercise of discretion requires consideration of the potential benefit to the party requesting the test or examination and the detriment to the party who would be subject to, or impacted by, the test. On the facts of this case Justice Garling held that all relevant factors “point firmly in favour” of granting the application. 8

Effect of decision

This decision clarifies the Court’s approach to considering the process for determinations of whether proposed medical examinations are relevant to the issues in a proceeding and how the Court’s discretion will be applied. Parties requesting and/or opposing medical examinations should assess the arguments for and against the examination and identify areas where evidence may assist the Court with the exercise of its discretion.

Cindy Tucker, Partner

NewsFlash 04 April 2014
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