Chiropractor & Cancer cure advertising

AHPRA has noted that a New South Wales chiropractor has been fined after pleading guilty to unlawfully advertising a regulated health service and using testimonials contrary to the National Law, after he claimed to be able to prevent, treat and cure cancer in his advertising. The prosecution was apparently the first pursued by AHPRA.

AHPRA and 14 National Boards that regulate Australia’s registered health workforce have published Guidelines on advertising regulated health services to help health practitioners and service providers know their obligations under the National Law.

NDIS: Costs review by Productivity Commission

On 22 February 2017 the Productivity Commission released an Issues Paper to assist participants in preparing a submission to the study into National Disability Insurance Scheme costs. It outlines a range of issues about which the Commission is seeking information.

Initial submissions are due by Friday 24 March 2017. Opportunity for further comment will be sought upon release of the position paper in May 2017.

The terms of reference ask the Productivity Commission to look at:

  • the sustainability of scheme costs, including current and future cost pressures, and how to manage any potential cost overruns
  • whether jurisdictions have the capacity to deliver disability care and support services as the scheme expands
  • how the NDIS impacts on, and interacts with, mainstream services
  • whether efficiencies have been achieved within the scheme
  • whether there are any issues with scheme design, including the application of market and insurance principles, in ensuring the best possible outcomes for people with profound or severe permanent disability
  • funding and governance arrangements, including financial contributions, risk-sharing, and the ‘escalation parameters’, which define the annual increase in funding required by different jurisdictions.

With thanks to Timothy Bowen for noting this document.

Costs orders

Cave v ACT [2017] ACTSC 34 provides a useful precedent in respect of costs orders in a complex medical claim, with three defendants.

The claimant was entitled to an order for payment of costs on solicitor client basis, following service of an offer of compromise for a lesser sum than the ultimate settlement.

Varying cost orders were made as between the three defendants.

NDIS: Substantially reduced functional capacity & financial sustainability

Kilgallin and National Disability Insurance Agency (General) [2017] AATA 186 required the AAT to review a decision of the NDIA that Mr Kilgalliin (K) did not qualify to become a participant in the NDIS. K had been diagnosed by a psychiatrist as being affected by obsessive compulsive disorder; major depressive disorder; autistic spectrum disorder; and mixed personality disorder with cluster A and C type personalities (at [3]).

In issue was whether K met the section 24(1) disability requirements of the National Disability Insurance Scheme Act. It was accepted that K had a disability (subsection 1a) which was likely to be permanent (subsection 1b) affecting his capacity for social or economic participation (subsection 1d). Remaining for determination was the subsection 1c requirement:

…the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities: communication, social interaction, learning, mobility, self-care, self-management.

There was a particular focus on the extent to which Mr Kilgallin’s impairments resulted in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, in particular, social interaction: (at [8]).

Having reviewed the evidence, the Tribunal was not persuaded that K had a substantially reduced functional capacity.

The Tribunal commented on a submission from the NDIA as to the potential impact on the financial sustainability of the NDIS had K been found to qualify, (impliedly on the lack of clear evidence in that regard) saying at [28]:

The Tribunal heard submissions from the respondent with respect to the financial sustainability of the NDIS and the potential financial impact to the scheme of permitting applicants with conditions similar in nature to that of Mr Kilgallin to become participants. The Tribunal accepts, pursuant to other sections of the Act, that it has an overarching responsibility to ensure its decision does not significantly erode the overall financial viability of the NDIS. However in the absence of any specific information about what a decision to include a person such as Mr Kilgallin in the scheme might mean for the financial sustainability of the scheme, the Tribunal is unable to form an opinion as to exactly what impact a decision of that kind would have on its financial sustainability. The Tribunal therefore notes the obligation, but does not consider it to be a factor favouring or disfavouring the Applicant on this occasion.




Intentional act by co-worker; The duty of care regarding mental harm

Although not a medical claim, Optus Administration Pty Limited v Glenn Wright by his tutor James Stuart Wright [2017] NSWCA 21 is of interest for its consideration of mental harm issues by the Court of Appeal (NSW).

The appellant, Glenn Wright, claimed damages for psychological injury as a result of an attempt by a co-worker, Nathaniel George, to murder him by attempting to throw him from the roof of the Optus premises.

As a result of the incident, Mr Wright suffered a blow to the head, occasioning no compensable loss. He later developed chronic severe post-traumatic stress disorder.The trial judge found that the relationship between Optus and Mr Wright was analogous to that of employer and employee, even though Mr Wright and Mr George were both employed by labour hire companies that had supplied their services to Optus. The primary judge also found that Optus’ duty of care to Mr Wright extended to taking reasonable care to protect him from the criminal acts of others in the workplace.

On appeal the Court held (per Basten JA (Hoeben JA agreeing); Gleeson JA dissenting) that:

1.   The primary judge impermissibly aggregated the knowledge of various employees of Optus and then attributed that knowledge to the corporate employer for the purpose of demonstrating negligence on the part of Optus: at [52].

2.   Optus did not owe a duty of care directly to Mr Wright with respect to mental harm satisfying the requirements of s 32 of the Civil Liability Act: at [67] (Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 considered).

3.   Absent an express finding by the primary judge (and there was none) that an assault of the severity inflicted by Mr George, being intended to put Mr Wright’s life in peril, was something which Optus ought to have foreseen and which it should reasonably have foreseen might cause a person of normal fortitude to suffer a psychiatric illness, Optus was under no duty to take reasonable care to protect Mr Wright against mental harm: at [69].

4.   It was not probable that any of Optus’ staff knew or should have known that Mr George might, as a possibility, attempt to kill or violently assail the plaintiff in a way which might cause a person of normal fortitude to suffer a psychiatric illness. Absent such a finding, (a) none of them owed the plaintiff a duty of care with respect to mental harm and (b) Optus could not be vicariously liable to the plaintiff: at [96].

At [36] Basten JA noted that one  effect of s 32 of the Civil Liability Act 2002 (NSW) is to require a particular and separate inquiry into the existence of a duty of care with respect to mental harm. The section imposes a qualification on the test of reasonable foreseeability by specifying three elements that the defendant ought to have foreseen, namely, (a) that “a person of normal fortitude” might (b) “in the circumstances of the case” suffer (c) “a recognised psychiatric illness”, if reasonable care were not taken.

At [62] Basten JA further commented that it would not have been sufficient to ask “what is the chance of one call-centre trainee assaulting another”, but rather it would be necessary to ask “was it reasonably foreseeable that one call-centre trainee might assault another in a manner which, although it caused no physical injury, might nevertheless be so serious as to lead to a psychiatric illness in a person of normal fortitude?”



NDIS: AI based legal advice?

The National Disability Insurance Agency has announced its development of an online ‘virtual assistant’, NADIA. To be accessible on a 24/7 basis through the NDIS participant’s portal, it is said that:

(Nadia) can speak, write and chat online…She can already understand thousands of questions put to her and will answer with clear and simple responses. The more interactions she has with people, the more her knowledge bank will grow.

A short YouTube video (5 m 34 s) explains the background to the NADIA tool.

Earlier reports suggested that the NDIS would have access to the IBM Watson cognitive computing system, though whether that has been used for NADIA is not clear.

Limited purpose AI legal advice systems have been developed elsewhere, such as in England for advice on parking ticket disputes.

Image of Nadia assistant asking 'How can I help you?'

Dismissal for want of prosecution & potential prejudice issues

Robert Carl Klewer v Sydney Children’s Hospital Specialty Network [2017] NSWSC 88 considered an application to dismiss proceedings in circumstances where a person willing to act as tutor for the plaintiff could not be found.

Following a detailed summary of the history,  the court made an order such that the proceedings were dismissed. A possible later recommencement of the proceedings was referred to. As to potential prejudice should that occur:

…the decision of the High Court of Australia in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27.  That case is authority for the proposition that even where the Limitation Act does not apply, there comes a time when a plaintiff’s cause of action is so stale by the great effluxion of time that a defendant cannot receive a fair trial, the interests of justice will require a court to dismiss or permanently stay the proceedings.

Office of the Health Ombudsman, Queensland

Published in December 2016 was the report of Parliamentary Inquiry into the performance of the Queensland Health Ombudsman.

55 submissions are said to have largely focussed on the actual time taken for the assessment and investigation of complaints as well as the timeframes allowed for health service providers to respond or provide information to the OHO

Minter Ellison has produced a useful summary which concludes:

The Committee concluded that it would be premature to fundamentally change the health complaints system. Instead, it determined that further investigation is required to determine the underlying reasons for the issues addressed by the inquiry. As an initial step to improve the performance of the system, the Committee made recommendations to the Queensland Government to consider:

 amending the Act to introduce a joint consideration process between the OHO, AHPRA and the National Boards, including to examine the benefits of having a single assessment stage for complaints, the appropriateness of existing statutory timeframes and how clinical input can be utilised;

 the options for ensuring that serious professional misconduct, which may also involve a practitioner’s health or performance, be dealt with as a whole; and

 the introduction of a number of amendments suggested by the OHO which focus on correcting some deficiencies in the existing legislation, providing clarity to timeframes and legislative requirements, allowing for flexibility in dealing with issues at the local resolution and conciliation stage and facilitating better information sharing.

The Committee also suggested that the OHO, AHPRA and the National Boards develop a plan that identifies the information needs of all parties and the barriers that prevent the production of nationally-consistent data about health service complaints.

With thanks to Associate Professor Tina Cockburn for noting this information.

Proceedings transfer, costs implications & pleadings

Verhoeven v Halliday [2017] NSWSC 77 saw an application by a plaintiff in proceedings which arose from alleged medical negligence (anaesthesia), to transfer the proceedings from the Supreme Court NSW to the District Court NSW.

Claims for nervous shock made on behalf of the deceased’s mother and his children had been settled, so that only quantification of the Compensation to Relatives Act aspect of the claim remained. Breach of duty and causation of the death had been admitted.

Although the defendant had indicated that  it would not raise any issues under UCPR 42.34, the plaintiff noted at [8] that it remained open to a trial judge to disregard this concession and make a costs order adverse to the plaintiff when the damages were finally assessed (if less than $500,000 in the Supreme Court).

Harrison J said at [10] that it was far more likely, if not in fact certain, that the defendant’s concession about costs that was made plain in correspondence would carry the day in a costs argument before any judge of the Court. Accordingly the plaintiff’s summons was dismissed with costs ordered in favour of the defendant.

In passing at [2], Harrison J made obiter comment about the level of detail required in a statement of claim, saying:

It should not, by way of example, contain a minute-by-minute journey through medical or surgical records referring to almost everything that might have happened to a patient whilst in an operation or under an anaesthetic. This type of approach regrettably seems to have gained favour with some members of the legal profession practising in the field of medical negligence but for reasons that entirely escape me. It is an approach or style that is not to be encouraged and I would actively discourage it.