Guide to medico-legal reports

A medico-legal report is a written document in which a medical, psychological, or allied-health practitioner sets out facts and, where appropriate, an expert opinion on a clinical question relevant to a legal matter. It is prepared for use in a dispute, claim, or court proceeding rather than for ordinary patient care.

Two broad categories are recognised in Australian practice. A treating-doctor report sets out the practitioner's involvement in the patient's care — history, examination, investigations, diagnosis, and treatment — and is largely factual (Bird, Aust Fam Physician 2014; Freckelton & Selby, Expert Evidence, ch. 28). An independent expert report is prepared by a practitioner with no prior treating relationship, who is instructed to examine the records and/or the person and to express an opinion within their specialised knowledge.

Whichever role applies, the practitioner's overriding duty is to the court or tribunal — not to the party who instructs them. The expert is there to assist the decision-maker with knowledge that lies outside ordinary experience, never to advocate for a side.

Confirm the request is in writing and is accompanied by a recent, signed authority from the patient (or, if the patient has died, the executor). A general or stale authority is not enough — it should be specific to the purpose of the report (MDA National, Writing Medico-Legal Reports and Giving Evidence in Court).

Clarify the purpose, the audience, and the questions to be answered. Be wary of vague requests addressed 'to whom it may concern' (Bird, 2014).

Check for conflicts of interest before accepting the brief or hearing the facts of the matter. A short, careful disclosure to the instructing solicitor avoids later disqualification (Arneil, Unisearch — Saving tips when instructing an Expert, NSW Law Society).

Confirm scope, timing, fee basis, and whether you are being asked to assume any facts. Identify any records or imaging you need before you start; ask for them in writing.

Remember you are under no obligation to provide an opinion. If a question is outside your expertise, decline that part of the request and provide factual information only (Bird, 2014).

If the matter involves family, child-protection, or coronial proceedings, take additional care with confidentiality — information about third parties (including other patients) must not be disclosed.

1. Patient identification — full name and date of birth.

2. Requesting party, date of the request, and the stated purpose of the report.

3. Your credentials — registration, qualifications, position, and relevant experience at the time of the events and at the date of the report.

4. Material reviewed and assumptions — every document relied on, every record reviewed, and any facts you have been instructed to assume (distinguish these clearly from facts you have verified).

5. Facts in chronological order — presenting history (using reported speech: 'Mr A said he was hit by a car', not 'Mr A was hit by a car'), examination findings, investigations, provisional diagnosis, treatment, and current condition.

6. Response to the specific questions asked — reproduce each question and answer it in turn. Do not answer questions that require an opinion beyond your expertise.

7. Opinion and reasoning — where you do offer an opinion, expose the facts, the assumptions, and the chain of reasoning that lead to it (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 per Heydon JA; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588).

8. Limitations, qualifications, and alternative views — acknowledge what you do not know and the reasonable competing interpretations.

9. The declaration required by the applicable Expert Witness Code of Conduct, and your signature and date.

Most Australian courts require an expert to read, acknowledge, and comply with a code of conduct before the report is admissible. The codes are substantively similar — independence, paramount duty to the court, full disclosure of facts and assumptions, and reasoned opinion — but they live in different instruments.

New South Wales — Uniform Civil Procedure Rules 2005 (NSW), Schedule 7 (Expert Witness Code of Conduct).

Federal Court of Australia — Expert Evidence Practice Note (GPN-EXPT) and the Harmonised Expert Witness Code of Conduct at Annexure A.

Victoria — Supreme Court (General Civil Procedure) Rules 2015, Order 44 and Form 44A.

Queensland — Uniform Civil Procedure Rules 1999 (Qld), r 428 and Practice Direction 2 of 2005.

Common-law backdrop — the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 confirmed that opinion evidence is only admissible under s 79 of the Evidence Act 1995 (Cth/NSW) where the witness has specialised knowledge based on training, study, or experience, and where the opinion is wholly or substantially based on that knowledge. Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 remains the leading authority on how that reasoning must be exposed in the report.

Always ask the instructing party to identify the applicable code, and quote its declaration verbatim at the end of your report.

The Medical Board of Australia's Good Medical Practice: A Code of Conduct for Doctors in Australia (section 8.8) requires doctors to be honest and not misleading in reports and certificates, to verify content before signing, to act within a reasonable timeframe, and to make clear the limits of their knowledge when giving evidence.

The AMA's Ethical Guidelines for Doctors Acting as Medical Witnesses (2011, periodically revised) reinforces independence, disclosure of any treating relationship, and the duty to confine opinions to areas of genuine expertise.

Specialist colleges publish their own guidance — for example, the RANZCP's Professional Practice Guideline 11 (Developing Reports and Conducting Independent Medical Examinations in Medico-Legal Settings) and the APS Ethical Guidelines on Reporting in Forensic Contexts. Follow the guidance of the college relevant to your discipline.

Reports must be delivered within a reasonable time. Undue, unjustified delay may attract action by the Medical Board of Australia (Freckelton & Selby, ch. 28).

Use plain language. A medico-legal report is not a letter to a colleague — explain abbreviations and clinical terms in parentheses on first use (e.g. 'GCS (Glasgow Coma Scale) 15/15 — fully conscious'; 'hyphaema (blood inside the eye, in front of the iris)') (MDA National, case history 1).

Avoid legal terms of art such as 'grievous bodily harm' or 'negligence' — describe the clinical findings and let the court apply the legal test (Bird, 2014; MDA National).

Use 'on the balance of probabilities' and 'more likely than not' with care — they are legal standards, and your opinion should be expressed in those terms only where you genuinely mean them.

Separate observation, history, and inference. State what you saw, what you were told, and what you conclude — and label each.

Acknowledge contrary views. If there is a reasonable alternative interpretation, mention it and explain why your preferred view is preferred. Balance reads as credibility under cross-examination.

Do not act as an advocate. Do not omit a relevant pre-existing condition or finding because it is unhelpful to the instructing party — selective reporting is the single most common reason expert evidence is rejected at trial.

Answering questions in general terms instead of addressing the specific issue posed.

Stating a conclusion without exposing the reasoning, facts, and assumptions on which it rests (the Makita problem).

Recording the patient's account of events as if it were established fact.

Amending a report at the request of a party. If new information emerges or you have made an error, issue a clearly-marked supplementary report — do not edit the original (Bird, 2014; MDA National).

Expressing opinions beyond your area of expertise, or making legal conclusions reserved to the court.

Failing to disclose a prior treating relationship, conflict of interest, or change of opinion since an earlier report.

Emotive or partisan language. The weight of a report lies in dispassionate, professional composition (Freckelton & Selby, ch. 28).

If you are subpoenaed, contact the issuing solicitor early to confirm whether your attendance is genuinely required, the likely date and length, and whether your report has been served on the other side.

Re-read your report and the underlying medical records before you attend. You may take your records and report into the witness box.

Take the oath or affirmation. Provide your name, qualifications, position, and experience when asked.

Examination-in-chief — the party who called you will walk you through your report. Cross-examination follows from the other side. Re-examination is limited to clarifying issues already raised.

Listen to each question, pause, and answer only the question asked. Address your answer to the judge or jury, not to the barrister asking the question.

If you do not know an answer, say so. If a proposition put to you is correct, concede it. Your role is impartial assistance, not advocacy (MDA National, Tips on giving evidence).

Decide first whether an expert is actually needed. Opinion evidence is admissible only where specialised knowledge will assist the trier of fact (s 79, Evidence Act 1995; R v Turner [1975] QB 834). Courts have awarded indemnity costs against parties for unnecessary expert evidence — Bodilly & Hand (No 2) [2012] FamCA 734; Mark Gerard Ireland v Retallack (No 2) [2011] NSWSC 1096.

Run a conflict check before disclosing case details. Ask a discrete, jurisdiction-specific question first ('Are you currently retained in any matter concerning X?') (Arneil, Unisearch).

The Letter of Instruction is the primary reference point for the expert's report — wording matters. It should identify the issues, the agreed and assumed facts, every document being provided, the specific questions to be answered, the applicable Expert Witness Code of Conduct, the timetable, the fee basis, and whether a draft is required (NSW Young Lawyers & Unisearch, The Practitioner's Guide to Briefing Experts, ch. 5).

Always follow a verbal brief with a written one. Verbal context is fine; it must be confirmed in writing so the basis of the opinion is on the record.

Documents produced under compulsion (subpoena, discovery) attract the Harman / implied undertaking that they will be used only for the purpose of the proceeding — Hearne v Street [2008] HCA 36. Brief your expert about that obligation before sending material.

Where the court orders an expert conclave or concurrent evidence (a 'hot tub'), brief the expert on the process, the joint-report timetable, and the duty to confer in good faith (UCPR 2005 (NSW) Sch 7; Federal Court Practice Note GPN-EXPT).

Plan for review. Tell the expert at the outset that you will review the draft for clarity, format, and compliance with the rules of admissibility — not to change opinions (Arneil, Unisearch).

Have you read the letter of instruction and addressed every question?

Have you listed every record and document reviewed?

If you examined the person, was consent obtained, documented, and the date recorded?

Are facts and assumptions clearly separated from your opinion?

Is each opinion supported by reasons and, where appropriate, by literature?

Have limitations and reasonable alternative views been acknowledged?

Have you disclosed any prior treating relationship, conflict of interest, or change of opinion?

Have you included the declaration required by the applicable Expert Witness Code of Conduct, and signed and dated the report?