Issue 11 / 28 March 2011

A PATIENT took two doctors and a mental health clinic to court claiming they had caused harm to him because they would not provide disability certificates allowing him to access his superannuation.

The case highlights the fine line medical practitioners can walk when deciding whether to issue a medical certificate.

Mr Kim Kilvington, a barrister, had not worked for some time but was not yet old enough to access his superannuation. He had a significant history of mental illness and decided to access his super fund, but first his insurer required two medical certificates addressing his “permanent incapacity” to work.

Mr Kilvington approached his general practitioner Dr Alan Grigg and a Queensland government-operated community mental health clinic. At the clinic, Mr Kilvington consulted Dr Sridhar Kashivishwanath, who was not a specialist psychiatrist at the time, though Mr Kilvington thought that he was.

Dr Grigg had been Mr Kilvington’s GP for some time and was reluctant to provide the certificate, not because he doubted his disability; but because of Mr Kilvington’s heavy drinking.Dr Grigg said his major concern was that if Mr Kilvington received money, he would spend it on alcohol.

Dr Kashivishwanath was also reluctant to provide a certificate. He did not think Mr Kilvington should be making decisions about financial matters of such importance in his then mental state, nor was he prepared to express the view that Mr Kilvington was permanently incapacitated.

Dr Kashivishwanath said if Mr Kilvington could keep away from alcohol, it may be possible to adequately control his mental condition by medication so that he would be able to continue to work.

Mr Kilvington represented himself when he made the claim alleging the doctors and the clinic had breached legal and statutory duties by failing to provide the certificates.

The defendants asserted that there was no legal duty in contract or tort law, nor was there any statutory or other duty upon them to provide such a certificate.

There was no general contract between Mr Kilvington and the mental health clinic and its doctors, as it was a service provided by the Queensland government free of charge — no payment was made by Mr Kilvington or indirectly through Medicare for the consultation.

Dr Kashivishwanath, like any medical practitioner, owed a duty to take reasonable care to avoid causing harm to Mr Kilvington in connection with his treatment of him. Mr Kilvington argued that such a duty extended to not causing financial harm or loss to him.

In this case, where the issue was to obtain earlier access to superannuation funds to spend on various things, the legal concept of foreseeable economic harm was by no means clear.

The judge concluded that as Dr Kashivishwanath was not prepared to certify Mr Kilvington as being permanently incapacitated, providing a certificate would not have resulted in him being given earlier access to his superannuation funds by the insurance company, so the doctor had not caused economic harm.

The judge noted that if the request had been for a medical certificate confirming illness as a reason for absence from employment the position for medical practitioners may be different. Without a certificate of illness, an employee may suffer real and immediate economic loss.

However, in this case the court found against Mr Kilvington regarding the existence of any statutory duty to avoid financial harm. The court also found there was no scope for him to claim the doctors negligently caused mental harm in the form of distress and similar symptoms falling short of psychiatric injury.

Although the claim by Mr Kilvington failed, medical practitioners should not assume that the findings mean the court would not award damages should a doctor (for no good reason) refuse to supply a medical certificate confirming unfitness for work.

It would be wise to seek advice from a medical defence organisation if you become involved in similar dispute about issuing — or not — a medical certificate.

Mr Madden is the National Practice Group Leader – Medical Law with law firm Slater and Gordon, and is an Adjunct Fellow at the Law School at the University of Western Sydney.

Posted 28 March 2011

3 thoughts on “Bill Madden: Beware the dangers of saying “no”

  1. Alston Unwin MB,BS,DPM,FRANZCP,MRCPsych,MRACMA says:


    Is not Alcohol Dependence an Illness classified in the various editions of DSM – III, IV, IVTR and now DSM5 let alone the ICD codes?    Such bias and bigotry brings out the red-necks – witness the comment posted  which describes the man, not as a person suffering an illness but a ‘bludger who can’t be bothered to work.’  It would be interesting to know if the poster of such comments had actually examined the man.  That K sought to bring such a claim could well be seen as a error in judgment and reasoning and not simply a reason for putting him in the proverbial ‘stocks’ of public opinion.

    The test is not whether the patient consumes alcohol or not.  It speaks to impairment and inability to work in any meaningful and continuous way.

    Does he have an illness?  The answer is ‘Yes.’

    Is he impaired? Yes.

    Is he able to work in any meaningful way and on a continuous basis.  ‘No.’

    The legal position may be debated – the medical position seems censorious.

  2. Harry Karipis says:

    I have only recently come across this. It would seem that if the plaintiff was well enough to conduct his own case then he was fit enough to work given that, that was his job in the first place.

  3. Incredulous says:

    Yippee – Now doctors are also responsible for the financial affairs of every bludger who can’t be bothered to work. Last doctor in practice please turn out the lights.

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