Refusal of medical treatment by a prisoner

A first instance decision from Ireland, AB v CD [2016] IEHC 541 is unusual for its consideration of refusal of medical treatment by a prisoner serving a life sentence for murder.

The discussion of the initial provision of treatment, given concerns about capacity and in the circumstances of an emergency, is not controversial. However far more novel is the discussion of whether a prisoner has a right to autonomy to refuse medical treatment: [13] ff. The court decided against the existence of such autonomy at [50], saying that  it was a false premise that a prisoner has a legal entitlement to exercise his or her autonomy in a manner which would frustrate the order of the court remanding or sentencing him or her.

The court concluded at [52]:

Thus, I made an order compelling the defendant to undergo treatment, on the basis that as a prisoner in custody under a court order, he is not simply entitled to refuse treatment where this would either directly or ultimately put his life at risk and thereby frustrate the verdict and order of the court. To that extent, his rights to autonomy, privacy and bodily integrity are qualified by his status as a prisoner and his liability to undergo his sentence, which necessarily involves a prohibition on his frustration of that sentence by self-harm including harm by neglect or omission in relation to matters such as medical or surgical treatment, nutrition or hydration.


Requests for changes to medical records

With thanks to Karina Hafford for noting a recent decision of the Supreme Court of Western Australia: Morris v Information Commissioner [2016] WASC 336.

The applicant had applied to the Information Commissioner for a direction that certain of her medical records be amended (by the entity holding those records) so as to delete certain references to her mental health: [2].

The Information Commissioner did not accede to the request and ultimately the Court dismissed her application as it was not an appeal on a point of law: [62].

In doing so the Court commented on the differences between objective matters in records, and expressions of opinion in such records: [45] – [50].


Pre-litigation discovery: Medical records

Bentvelzen v Wyndham-Plus Pty Ltd [2016] VCC 1240 considered an application for pre-litigation discovery so as to obtain medical records of the late de-facto partner of the applicant, who wished to pursue a mental harm claim arising from her death.

The de-facto partner had died without leaving a will, so (absent letters of administration) there was no legal representative with formal entitlement to access the records.

The court considered various issues arising from the application, holding firstly that granting access would not give rise to public harm sufficient to outweigh this potential right to sue: [18]. The court noted a potential forensic disadvantage in not having access to the records, relevant to the administration of justice: [24].

To permit further consideration of the exercise of the court’s discretion, the matter was stood so that the applicant could provide more evidence as to his potential claim, being evidence as to how the treatment (referred to in the records) may have related to the death and whether the applicant had suffered mental harm: [37].

Hospital Safety and Quality Assurance in Victoria

Released today is the Report of the Review of Hospital Safety and Quality Assurance in Victoria, written by Professor Stephen Duckett and entitled “Targeting Zero”.

Following a summary of findings, the report makes 10 umbrella recommendations, which address:

  • Safety and quality improvement
  • Hospital Boards
  • Accountability
  • Flow of information
  • Independent clinical expertise for attention to improvements
  • Risk management such that hospitals only offer care that is within capabilities
  • Robust clinical governance
  • Funding of mental health services
  • Clinical leadership
  • Focus on patient experience

The more detailed proposals include:

  • That the Minister establish a statutory duty of candour; and
  • That the government refers the issue of the feasibility of extending no-fault medical insurance to all healthcare injuries not currently planned to be covered by the National Disability Insurance Scheme or the National Injury Insurance Scheme to the Legal and Social Issues Committee of the Legislative Council for investigation.


Melanoma diagnosis delay claim

Coote v Kelly [2016] NSWSC 1447 saw claim alleging delayed diagnosis of a melanoma on the sole of the foot, which may have had the appearance of a plantar wart. A verdict was entered for the defendant, on the basis that there was no breach of duty and also as the defendant acted in accordance with peer opinion as to competent medical practice.

The judgment includes discussion of:

  • The relevance of inadequate note taking: [124]
  • The importance of contemporaneous objective evidence: [100] – [102]
  • Causation, which was not proven: [137].



Further interrogatories in medical negligence claim

Rice v Ghabrial (No 2) [2016] NSWSC 1449 saw an unsuccessful application by a plaintiff for leave to administer additional interrogatories in a claim arising from a knee replacement procedure.

The proposed further interrogatories concerned, amongst other things, the surgeon’s training record and whether another (more senior) surgeon was in the operating theatre at the time of the procedure.

Private homebirth & insurance

Following the COAG Health Council meeting on 7 October 2016, CCH reports that the Australian Health Ministers have agreed to extend the current exemption from holding professional indemnity insurance for homebirths (available to privately practicing midwives) to 31 December 2019. An audit is also to be completed.

Australian Health Ministers have agreed to extend the current exemption from holding professional indemnity insurance (PII) for homebirths available to privately practicing midwives to 31 December 2019.

Health Ministers have approved the necessary amendments to the Health Practitioner Regulation National Law Regulation to give effect to the decision made by Health Ministers to extend PII exemption for privately practising midwives until 31 December 2019.

Health Ministers noted the work being undertaken to improve the governance and safety of homebirth services provided by privately practicing midwives.

Health Ministers agreed that in conjunction with the extension of the PII exemption, the Nursing and Midwifery Board of Australia will be asked to undertake an audit of all privately practising midwives who provide homebirth services, and to bring a report on the operation of the Board’s Safety and Quality Guidelines for Privately Practising Midwives and the results of the audit to Health Ministers at the end of 12 months of operation of the Guidelines.

NDIS: Australian Human Rights Commission

The Australian Human Rights Commission has published a consultation paper, as a precursor to a national consultation process to guide development of the Commissioner’s priorities.

In relation to the NDIS the paper states:

“The Commissioner intends to focus on promoting the advancement of the rights of people with disability through the NDIS to the greatest extent possible, with a focus on ensuring the scheme is free of discrimination for people with disability.

Some initial areas of attention for the Commissioner include:

  • the interaction between the aged care system and the NDIS for people with disability over 65,
  • promoting choice and control in access to housing for people within the NDIS, particularly those who require supported accommodation, and
  • empowering people with disability to exercise their rights and responsibilities under the scheme, including by enabling informed decision making.”


Medical & health law blog