Defendant’s Capacity to Compel a Plaintiff to Submit to Forensic Analysis

Our era is witness to the steady advance of medical technology. New procedures permit doctors to enhance their understanding of a patient’s disabilities beyond previously accepted constraints. Many of these procedures might be considered invasive, potentially harmful or unpleasant.

Where new procedures enhance scrutiny of a plaintiff’s allegations, and require the plaintiff’s cooperation to do so, it is self-evident that a plaintiff will ensure that the investigative endeavours are constrained by appropriate norms.

There will be circumstances where a defendant will seek tests that a claimant will not accede to. Such circumstances arose in Rowlands v State of New South Wales [2009] NSWCA 136.

The plaintiff claimed damages for injuries allegedly caused by the defendant’s negligence. Extent of cognitive impairment was in issue. The plaintiff presented a history of pre and post-accident cannabis, ketamine and amphetamine use. Evidence from a treating psychiatrist indicated that the plaintiff continued to use cannabis despite his denials. A treating report suggested substance abuse contributed to cognitive impairment.

The defendant’s solicitors brought a motion before Robison DCJ in the District Court seeking orders that the plaintiff undergo screening for illicit drug use by urine, blood and hair analyses the day before a neuropsychological assessment. This request rested largely on an opinion by the assessing neuropsychologist that the test results would be compromised unless the plaintiff avoided alcohol for 24 hours preceding the test and abstained from drug use for 1 week before the test.

On 27 June 2008 Robison DCJ made the orders sought. The plaintiff appealed those orders to the Court of Appeal.

The Court of Appeal published its judgment on 3 June 2009. The majority decision comprises the judgments of Allsop P and Hodgson JA (the latter providing reasons); Tobias JA dissented.

Hodgson JA formulated the issues before the Court of Appeal as follows:

1. whether the orders were within power;

2. whether the orders infringed the applicant’s privilege against self-incrimination; and

3. whether there were other errors by the primary Judge.

Hodgson JA considered the provisions of Part 23 UCPR (particularly 23.1 and 23.4) and opined:

“The rules in question should be construed in the light of the generally understood circumstances that medical examinations now often involve the cooperation of a number of different experts; and often include examination by medical experts, who are pathologists, on samples that are routinely taken... [30] Under Rule 23.1, medical examination is defined as including any examination by a medical expert; and in my opinion that would include examination by an expert pathologist of samples taken from a party, even though the pathologist does not directly examine the party. What is authorised by Rule 23.4 is ‘orders for medical examination’; and in my opinion that extends to orders directed to and appropriate for the bringing about of medical examination, including the kind of medical examination routinely carried out by pathologists. Such orders could extend at least to routine procedures for obtaining samples that are necessary for that kind of medical examination.” [31]

He concluded that the orders were within the court’s power.

Hodgson JA then considered the privilege against self-incrimination. He acknowledged that the privilege cannot be abridged other than by statute or by waiver. He disagreed with Robison DCJ’s opinion that the orders lacked compulsion: “The detriment of having his actions stayed would in my opinion be an unacceptable attenuation of the privilege.” The next question requiring determination was whether there was a reasonable possibility of a valid claim for privilege against self-incrimination. He opined:

“It is not possible to say in advance whether an objection taken by the applicant at the time contemplated by the order would or would not be justified on the basis of privilege against self-incrimination. The problem is that the order takes effect whether or not it would be justified, so that even if non-compliance is on the basis of a justified claim of privilege against self-incrimination, the order would be breached and the stay of proceedings would take effect. There would remain the possibility of applying to have the stay of proceedings lifted, on the ground that non-compliance was justified; but that possibility does not eliminate the cohesive effect of the order. In my opinion, the order as made does offend against the privilege against self-incrimination…” [44]

Hodgson JA opined that the privilege was not waived by assertions made by the plaintiff in the context of the claim.

Hodgson JA identified a series of additional errors in Robison DCJ’s findings. He found that Robison DCJ’s opinion that the “tests were needed to test the veracity of the plaintiff’s condition” spoke of an improper purpose going to the plaintiff’s truthfulness rather than a purely medical investigation. He opined that the tests sought ranged beyond those endorsed by medical experts, whose recommendations went no further than an assurance that the plaintiff was sober at time of assessment and had not taken cannabis in the previous 7 days.

The Court of Appeal ordered that Robison DCJ’s orders be set aside. Hodgson JA stated:

“However, in my opinion the evidence before the primary judge did justify adoption of a proposed timetable for medical examination of the applicant, including drug testing, with liberty to the respondents to apply for a stay of proceedings if the applicant does not comply with that timetable. Such orders, if not directly supported by Part 23, are plainly within the power to stay proceedings given by section 67 of the Civil Procedure Act … To make such orders would in my opinion further the purposes set out in section 56, 57 and 61(1) of the Civil Procedure Act.” [55]

“If the applicant chooses to claim privilege against self-incrimination, the merit of that claim can then be considered on an adequate basis on the respondent’s application for a stay of proceedings.” [56]

“Subject to the possibility of self-incrimination, as to which the applicant is protected, the rights, privileges and immunities at risk do not in my opinion necessarily outweigh the respondent’s entitlement to a fair trial … in my opinion the evidence does justify a finding that the tests in question are at least highly desirable if the respondents are to have the benefit of evidence based on reliable neuropsychological testing.” [57]

The Appeal was allowed. The orders of Robison DCJ were set aside. However the Court of Appeal concurred with the primary judge’s decision as to the legitimacy of the proposed testing protocol. The parties were ordered to submit short minutes revisiting the medical assessment timetable (including drug testing) that had formed the orders in the lower court, with a chief distinction being removal of orders serving to automatically stay proceedings if the plaintiff did not comply with the timetable. In lieu of the automatically triggered stay orders, the defendant was granted liberty to apply for a stay if the plaintiff did not conform to the timetable.

Thus while Robison DCJ’s orders generated a stay if the plaintiff failed to comply with the timetable, the Court of Appeal approved the timetable but left the issue of a stay to be determined via a subsequent hearing brought by the defendant, against which the plaintiff might presumably present a claim for privilege against self-incrimination.

There was no dissension as to whether in appropriate circumstances a plaintiff might be obliged to undertake the testing protocol sought by the defendant. Tobias JA agreed that Rule 23.4(1) should be construed as capturing the taking of blood, x-rays, CAT scans and MRI scans. The legitimacy of a test is contingent on its relevance to the party’s condition and the tests cannot be used for collateral purposes, such as testing credibility. He further stated: “I see no reason why such a request cannot be made by the expert before, during or after an examination if required for the purposes of that examination”.

Tobias JA dissented on grounds that the evidence presented in the matter warranted the testing protocol: “I am unable to accept that the evidence before the Primary Judge was sufficient to justify the making of those orders.” [65] He noted that the prospective treating expert had required no more than avoidance of alcohol 24 hours before testing and abstention from illicit drug use for one week before testing. There was no evidence supporting the testing protocol ordered: tests for drug use during the 90 days pretesting were excessive (hair analysis) and the urine test (capturing a 3 day period) would not respond to the 7 day period of abstinence. Therefore the tests were not directly compliant with the objectives sought by the examiner. He found a lack of direct proportionality and necessary efficacy between the test sought and the opinions expressed by the examiner.

The judgments indicate that the defendant must adduce clear evidence of the relevance of the tests to the proposed medical examinations and the conditions assessed. The source of authority requiring the tests does not capture tests performed to assess a plaintiff’s credibility.

A plaintiff’s capacity to challenge the tests on grounds of privilege against self incrimination remains to be considered.