Responsible advertising of health services

The Australian Health Practitioner Regulation Agency and the National Boards today published a strategy for the National Scheme which explains how they will manage advertising complaints and compliance, including the regulatory powers available to deal with breaches of the National Law.

Section 133 of the National Law makes it a criminal offence for any person (including registered health practitioners) to advertise a regulated health service or a business that provides a regulated health service, in a way that:

  • is false, misleading or deceptive or is likely to be misleading or deceptive
  • offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer
  • uses testimonials or purported testimonials about the service or business
  • creates an unreasonable expectation of beneficial treatment; or
  • directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

The definition of a regulated health service is very broad and applies to public and private services. It is not constrained to direct clinical services.

With thanks to Timothy Bowen for noting this development.

 

Tort Tactics: An Empirical Study of Personal Injury Litigation Strategies

Published in Legal Studies but available online through SSRN is quite a novel article by Richard Lewis of Cardiff University,  entitled ‘Tort Tactics: An empirical study of personal injury litigation strategies‘: [2017] 37 Legal Studies 162.

The article deals with developments in the UK legal and insurance market, as well as (from page 11) a series of practical issues including securing a reputation, controlling the pace of negotiation and the effects of increased use of paralegal staff.

 

NDIS: McGarrigle appeal foreshadowed

The NDIA has announced its intention to have the McGarrigle decision reviewed by the Full Court of the Federal Court of Australia; saying:

Because this is effectively a test case with implications for the long-term financial sustainability of the National Disability Insurance Scheme (NDIS), the NDIA has decided to appeal the Federal Court decision to the Full Court and has lodged an appeal today.

McGarrigle v National Disability Insurance Agency [2017] FCA 308 dealt with whether the NDIS, in considering reasonable and necessary supports, should fund all of Mr Liam McGarrigle’s transport costs or only a portion of them.  The Federal Court held that once a decision is made that a support is reasonable and necessary, then the scheme requires and contemplates that support “will” be funded. … that can only mean wholly or fully funded (at [94]).

With thanks to Janine McIlwraith for noting this announcement.

 

Confidentiality and risk of harm

DLA Piper last week published a note on the Inquest into the death of Adriana Donato, a matter in which the deceased had been killed by a person who previously sought mental health care. During his sessions with a psychologist the person had expressed his anger towards Ms Donato and disclosed intentions to harm an unnamed person.

DLA Piper summarised the issues as follows:

The inquest focused on Mr Stoneham’s disclosures to his psychologist, and examined the existing obligations of confidentiality in the psychologist/patient relationship and the current threshold for breaching patient confidentiality under the Health Records Act 2001 (Vic) (HRA), which requires “a serious and imminent threat”.

The psychologist gave evidence that she had not reached the view that Mr Stoneham constituted a serious or imminent threat. However, the Coroner found that it would have been appropriate for the psychologist to question Mr Stoneham on his threats, such questioning should have made reference to Ms Donato and should have intended to verify whether he had developed a plan as to how harm would be inflicted. The response to these questions could have clarified whether she notify her employer and the police of the threats.

The Coroner recommended that the State of Victoria amend the HRA to remove the requirement that a “serious risk of harm” be also one which is “imminent”. It also recommended that existing Code of Ethics and Guidelines (of the Psychology Board of Australia) should provide greater clarity of reporting obligations.

Protective application: Proposed bone marrow transplant by deregistered doctors

It is difficult to briefly describe all of the issues touched on by the court in the Court of Protection decision In the matter of SW [2017] EWCOP 7, an application lodged by the son of a man affected by multiple myeloma. The application sought various orders such that the man could undergo allogenic bone marrow transplantation. However the application appears to have been intended to set a precedent with wider application, so as to “enable the public to obtain these life-saving, and curative treatments, from family members – not only for haematological cancers such as leukaemia, lymphoma and myeloma but also for solid tumours, with minimal residual disease, such as metastatic breast, colon & pancreas” (at [26]).

Two doctors sought to be joined to the application, apparently with a view to them carrying out the proposed procedure. Unfortunately both doctors had their names erased from the Medical Register following determinations by Fitness to Practise Panels of the Medical Practitioners Tribunal Service: [6].

Refusing the application, the court noted the lack of clear evidence as to the man’s lack of capacity or his views as to the proposed treatment and noted the difficulty caused by the proposed treatment being carried out by two deregistered doctors: [25].

A costs order was made, not only against the applicant but also against the two deregistered doctors: [37] – [39].

With thanks to Lise Barry of Macquarie Law School, for drawing my attention to this decision.

 

 

Wrongful birth: Whether an injury, in particular a ‘service injury’

Previously noted (apparently before an anonymity order) was a decision of the Victorian Supreme Court considering whether a failure to diagnose a pregnancy such that a termination could not readily be obtained was compensable under a statutory scheme for naval personnel.

On appeal as FJ v Commonwealth of Australia [2017] VSCA 84, the court explained that the pregnancy of the applicant was not detected in medical examinations conducted by the Commonwealth after she had entered service in the Navy.  She has alleged that, if her pregnancy had been detected, she would have had an abortion.  Now, she is seeking to recover from the Commonwealth the costs of raising her child, but not any compensation for any pain and discomfort associated with her pregnancy and childbirth: [2].

FJ argued that her claim is solely one for ‘pure economic loss’ and that, ex hypothesi, it is not one ‘in respect of a service injury’: [80].

The decision is of interest outside of the statutory scheme for its review of a number of leading  wrongful birth decisions (Vievers v Connolly; CES v Superclinics; McFarlane v Tayside Health Board; Cattanach v Melchior; Caven v Womens and Childrens Health; Waller v James), leading to a conclusion at [130] that an action in negligence does not have to be understood solely in terms of an injury to the person or his or her property.

As to the statutory scheme, at [3] the court noted:

As has been the case in many common law jurisdictions, the Commonwealth has abolished some common law rights to compensation where personal injuries have been suffered and replaced them with a statutory scheme for statutory compensation combined with provisions for rehabilitation and treatment.  The applicant’s action is barred under the Military Rehabilitation and Compensation Act 2004 (Cth) (‘the Act’) if it is ‘an action or other proceeding for damages … in respect of … a service injury’. The Commonwealth contends that her action is ‘in respect of … a service injury’: unwanted pregnancy and childbirth are injuries and an action for damages for the cost of raising the child is necessarily ‘in respect of’ those injuries. The applicant says that her pregnancy and childbirth are not injuries within the meaning of the Act; alternatively, she contends, if they are injuries, her action is not in respect of them but is in respect of the economic cost of raising her child.

In a joint judgment the court concluded:

  • “While pregnancy will bring about physiological changes in a woman’s body, in our view those changes are not a ‘deviation’ or ‘disruption’ from the normal physiology of a female body any more than the changes associated with puberty, or with aging, (neither of which is regarded as an injury), are a deviation or disruption from normal physiology.  We do not accept that in ordinary language a healthy pregnancy and childbirth are described as injuries: [75]. But, in the present case, the question is not whether, in everyday language, pregnancy and childbirth may be described as injuries. It is whether they are understood at law as injuries”: [76].
  • “The Act broadly reflects the ordinary meaning of ‘injury’ but sharpens that meaning by restricting its application to those impairments or incapacities that require treatment or ‘rehabilitation’. Accordingly, unless the authorities otherwise dictate, we consider that there are matters within the statutory context which indicate that the applicant’s pregnancy and childbirth do not come within the definition of ‘injury’ as that terms appears in s 388 of the Act”: [128].
  • “If a normal pregnancy and childbirth do not amount to an ‘injury’ within the meaning of the Act, it is irrelevant how wide a construction is to be attributed to the expression ‘in respect of’ as there is no injury to which some other subject matter can connect. For that reason, the present claim is not a claim ‘in respect of’ an injury within the meaning of s 388(1) of the Act”: [136].
  • The applicant’s action is not one ‘in respect of … a service injury’. Therefore it is not barred by s 388 of the Act: [142].

The appeal was allowed. Absent an application for special leave to appeal to the High Court (which may well be made), the matter will presumably return to the Victorian Supreme Court for assessment of damages for the costs of raising the child.

False representation claim and inadequate training claim: Abuse of process / delay

Medical Board of Australia v Woollard [2017] WASCA 64 is a further decision concerning disciplinary action against Dr Woollard. The present matter was an appeal on a question of law touching on abuse of process, prejudice through delay and double jeopardy, against the background of the death of a patient following an angioplasty procedure.

One of the underlying complaints was in respect of inadequate training, in that the doctor performed the procedure in circumstances which did not meet the 2001 Cardiac Society guidelines which specified that competency would require a doctor to participate in at least 200 procedures, with a minimum of 75 procedures as the primary operator. A false representation complaint alleged that the doctor had represented that he had performed at least 75 coronary angioplasty procedures as primary operator and at least 125 as secondary operator.

Following a detailed review of the primary decision and the issues, the Court of Appeal allowed the appeal by the Medical Board. The Court of Appeal overturned the earlier order of the Tribunal by which the complaint against Dr Woollard had been struck out.

 

GP advice on ‘natural therapies’

Medical Board of Australia v Nuttall [2017] WASAT 58 is a recent disciplinary decision giving rise to a professional misconduct finding.  One aspect of interest arises from the parent of a child (for whom chemotherapy had been recommended) telling the doctor that the parents provided the child with ‘natural remedies’ consisting of a diet of fruit, vegetables and herbs and the application of mud or clay to the child’s body: [41].

The doctor (at hearing) conceded that he said ‘whatever you are doing, keep doing it‘ (at [73]) which the Board contended constituted an express or implied approval of the parents treating the child’s diagnosed cancer with fruits, vegetables, herbs and the application of mud or clay to her body: [74].

The doctor also provided a ‘fitness to fly’ certificate to assist the parents to take the child overseas (at [84]).

At [123] – [126] the Tribunal commented:

There was no evidence that the (parents) natural therapies were working. When (the doctor) was questioned as to whether he knew that the natural therapies could not possibly cure the Patient’s cancer, (the doctor) answered ‘The single answer is I didn’t know it couldn’t’. That was an extremely flippant answer. Here was a Patient who required urgent medical attention. Here was a doctor ignoring scientific based treatment in favour of what at best he could describe, as treatment that he did not know that it could not cure the Patient’s cancer ­ a double negative.

… The circumstances required (the doctor) to take care not to give any advice about the Patient’s disease that he was not qualified to give, to avoid giving the (parents) false hope by giving advice that was wrong or advice which misled them as to the efficacy of their alternative treatments and to avoid any action that would reinforce their reluctance to consider chemotherapy and which expressly and/or tacitly supported their decision to take the Patient to El Salvador.

(The doctors) conduct fell substantially below the standard reasonably expected of a medical practitioner of an equivalent level of his training or experience.

The Tribunal found that the doctor behaved in a way that constitutes professional misconduct for the purposes of s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) Act 2010, in that he should not have given (specified) advice and he expressly or impliedly approved of the parents providing alternative therapies to the child and/or expressly or impliedly recommended that they continue to administer natural therapies to the child.

A coronial inquest had previously reported on the death of the child.

 

 

Report of the review of the Assisted Reproductive Treatment Act 1988 (SA)

The report of the review of the Assisted Reproductive Treatment Act 1988 (SA), written by Dr Sonia Allan,  is now available online. The report was tabled by the South Australian Minister for Health.

The report makes some 47 recommendations including those in relation to:

  • Oversight of ART clinics
  • Welfare of the child
  • Establishment of a donor conception register
  • Access to ART; and
  • Record keeping.