Medical practitioner social drug use, absent a mandatory reporting obligation.

Health Care Complaints Commission v DAC [2017] NSWCATOD 98 is of interest for its consideration of a doctor’s knowledge of drug use in a social setting by another doctor, in circumstances where there was not a mandatory reporting obligation. Other issues arose which are not addressed in this note.

At [58] the Tribunal said:

The practitioner notes that initially the complainant had alleged that the practitioner was duty-bound, pursuant to ss.140 and 141, to report Dr A, but such complaint did not proceed. Instead, the allegation was made as currently framed, namely that the conduct constituted unsatisfactory professional conduct or professional misconduct. Whilst the Tribunal does not know the motivation for altering the complaint, the Tribunal notes that s.141 requires a reporting where a registered health practitioner forms a reasonable belief that the other registered health practitioner has behaved in an untoward manner “in the course of practising the first health practitioner’s profession…”. In the present circumstances, events surrounding Complaint 2 do not necessarily relate to that concept, but rather from the acknowledged facts gleaned in circumstances not arising from “the course of practising…”

Notwithstanding the withdrawal of the allegation of failure to make a mandatory report, the Tribunal said at [62]:

The Tribunal is satisfied that the practitioner owed, as his primary duty, a duty to patient care. Knowing that Dr A was consuming illicit drugs as specified in the complaint, it was incumbent upon him to report Dr A.

In [67] the Tribunal concluded:

The Tribunal is satisfied that the practitioner was so overcome with his affection for Dr A that he subverted his responsibility to notify Dr A’s superiors when there was a clear risk that patients could be exposed to potential harm. The Tribunal considers such failure by the practitioner to so notify as egregious conduct especially since the practitioner was a mentor of Dr A.

Gard: European Court of Human Rights

BBC News has reported today that the European Court of Human Rights have declined an application to intervene, made by the parents of Charlie Gard. A similar application to the Supreme Court of the United Kingdom had not succeeded.

The decision does not appear to be available online as yet, however a Court press release states in part:

In the proceedings before the European Court, Charlie’s parents argued – on their own behalf and that of their son – under Article 2 (right to life) that the hospital has blocked access to life sustaining treatment (in the U.S.A.) for Charlie and under Article 5 (right to liberty and security) that, as a result, he is unlawfully deprived of his liberty. They further alleged under Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) that the domestic court decisions amounted
to an unfair and disproportionate interference in their parental rights.
The Court bore in mind the considerable room for manoeuvre (“wide margin of appreciation”) left to the authorities in the sphere concerning access to experimental medication for the terminally ill and in cases raising sensitive moral and ethical issues, reiterating that it was not for the Court to substitute itself for the competent domestic authorities. From this perspective, the Court gave weight to the fact that a domestic legal framework – compatible with the Convention – was available governing both access to experimental medication as well as withdrawal of life sustaining treatment.
Furthermore, the domestic court decisions had been meticulous, thorough and reviewed at three levels of jurisdiction with clear and extensive reasoning giving relevant and sufficient support for their conclusions; the domestic courts had direct contact with all those concerned (notably, they had heard from all the medical experts involved in the treatment as well as experts instructed by the applicants, from Charlie’s parents themselves and from an independent professional appointed as the child’s guardian, had received expert reports from other doctors of international standing in the field and had visited the hospital); it was appropriate for the hospital to approach the courts in the UK in the event of doubts as to the best decision to take; and, lastly, the domestic courts had concluded, on the basis of extensive, high-quality expert evidence, that it was most likely Charlie was being exposed to continued pain, suffering and distress and that undergoing experimental treatment with no prospects of success would offer no benefit, and continue to cause him significant harm..

Subpoena for mandatory report documents

Behrens v Herlihy (NSWSC 22 June 2017; Registrar Bradford) is a decision not yet available on Caselaw. It may be the first decision referring a subpoena issued (by a plaintiff) upon the Medical Council of NSW for production of mandatory report documents (in respect of a defendant) under section 140 of the Health Practitioner Regulation National Law (NSW) No 86a.

The issues on hearing of the defendant’s motion to set aside the subpoena focused on whether there was a legitimate forensic purpose for access to the documents, given matters remaining in issue after the filing of a defence.

The defendant did not argue that the documents were protected by any particular aspect of the mandatory reporting regime.


Boundary violation claim: Police & witnesses

Although not a claim involving medical treatment, Auditore v State of New South Wales [2017] NSWDC 150 is of interest for its pleading of an action in negligence against the State of New South Wales for psychiatric injury alleged to result from a police officer having a sexual relationship with a witness.

The interlocutory hearing saw comment by the court at [8] that despite several attempts at a claim in negligence requiring the plaintiff to plead a novel duty of care, the nature of the claim as demonstrated by the particulars such as “inappropriate” behaviour and “grooming” is not a claim for negligence but either an intentional tort or a claim for sexual harassment. The pleader’s attempt to address these issues by a negligence claim raises issues of coherence (Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 as well as the need to identify the precise acts and/or omissions in order to determine the nature of the wrong alleged, and thus the remedy sought.

After an overview of some earlier relevant cases,  the statement of claim was struck out with leave to re-plead.


Making an Advance Care Directive – form and information booklet

The NSW Ministry for Health has helpfully published a booklet entitled Making an Advance Care Directive, which includes a precedent form.

The form includes prompts in relation to:

  • Personal values about dying
  • Directions about medical care, with some specific care types referred to
  • Organ donation, including ante-mortem treatment to facilitate organ donation
  • Capacity confirmation by a treating health professional.

The Advance Care Directive is currently being trialled as part of a project by South Eastern Sydney Local Health District. Following the evaluation of this project, the NSW Ministry of Health will consider if any changes to the form are required.


Expert witness conclaves: Probability and statements

Although not a medical claim and despite the reasons being quite brief, Bogunovic v Buildcorp Contracting NSW Pty Ltd [2017] NSWSC 805 has two interesting aspects.

Firstly, the plaintiff argued that the questions for the expert orthopaedic surgeons (in circumstances where the cause of the plaintiff’s disabilities was in dispute)  should include the sentence: “Your opinions in respect of the above are to be given on the balance of probabilities, that is, something is more probable than not. Scientific and medical certainty is not required.”

At [7]-[8] the court said:

I do not agree. Findings in a civil case are made on the balance of probabilities by a court. A medical expert expresses an opinion, approaching matters, including causation, from a medical perspective. There is a difference, as is well known and is referred to in authorities, between medical causation and causation as the law understands it, whether under s 5D of the Civil Liability Act 2002 (NSW) or at common law.

The point is that experts are not required to give their opinions based on the balance of probabilities, nor are they to be concerned with scientific and medical certainty. They give their expert opinion based on their medical knowledge and experience and in the light of the information which has been provided to them by the Plaintiff and their findings on any examination. The Court has regard to those opinions and will have to determine itself whether the Plaintiff proves on the balance of probabilities injuries, disabilities and incapacities arising from those injuries and disabilities. I do not consider it is appropriate that the experts should be directed to approach the matter in the way the Court is obliged to do.

Secondly, the plaintiff sought to provide the experts with assumptions which were largely taken from the evidentiary statement of the plaintiff. It is not clear from the judgment whether the plaintiff was seeking to obtain the views of the defendant’s experts on different assumptions than had been put to them. In any event the Court said at [9]-[11]:

…each of these experts has examined the Plaintiff and taken a history from him. That history may or may not accord with the material which is contained in the evidentiary statement. The fact that there might be differences between them is frequently a cause for cross-examination at any hearing.

It does not seem appropriate to me that the experts should now be required to consider a history that the Plaintiff intends to put forward to the Court, where that history may differ from the history that has been given to those doctors. The doctors are now not in a position where they can ask questions of the Plaintiff to clarify matters or to make them consistent with what they may have been told when they examined him.

In my opinion, the experts should provide their joint report based on their own examination of the Plaintiff and their own assessments of the material that they have seen to date.

Consent forms and professional misconduct

In Medical Board of Australia v Adams [2017] VCAT 796, perhaps unsurprisingly, the medical practitioner conceded that his submission of some 37 consent forms (purportedly signed by the patients but in fact not signed by them) constituted professional misconduct (at [23]).

The Tribunal commented:

  1. Firstly, it is a clear breach of the criminal law.  Dr Adams was dealt with in the Magistrates Court on charges of falsifying a document, a charge which carries a maximum level of imprisonment of 10 years.  He was placed on a diversion.  This means that there was no finding by the Magistrates Court of guilt.  Even so, he has admitted that fraudulent conduct.  Any member of the community who forges another person’s signature on a document commits a very serious offence.  When that person is in a doctor-patient relationship, it is our view that the offence is magnified in seriousness.
  2. Secondly, in forging the signature of the patient, he has effectively taken away the patients ability to exercise an informed consent to the operation.  This is no small matter.  Indeed it may be said that the recent history of the medical profession is one of encouraging openness between doctor and patient, and encouraging patients to take responsibility for their own medical decision making.
  3. Dr Adams response when we put that concern to him was to indicate that he was confident that he had discussed the matters on the form with all of his patients, including the potential complications of any operation.
  4. He provided us with his notes in respect of patient consultations with eight of those patients. His note on each occasion was cursory; – the words “operation discussed” were most frequently used. There seems to us to have been very little in his notes to rely on had there been a subsequent dispute as to what he had told his patients about the forthcoming operation.
  5. We accept that his recollection was that he would discuss the advantages and risks of the proposed operation with each patient. But even assuming that he had done so, it is nevertheless an extremely paternalistic approach to patient care for the doctor to have taken it upon himself to complete these detailed documents on his patients’ behalf, and apparently without their knowledge.
  6. It has meant that patients have not had the opportunity to discuss their treatment options and the benefits and risks of the operation in a considered manner with their family or other persons before opting to go ahead with treatment.
  7. 53. Further, in forging the patients’ signatures Dr Adams has placed other professionals including his colleagues at great risk.  For instance, the forged consent form includes consent to anaesthesia.  An anaesthetist may well have relied upon such a consent and would have been entitled to do so, not knowing that the consent was forged.


Notes of conference between medical expert and solicitor: Supplementary report?

Pierides v Monash Health [2017] VSC 326 followed an interlocutory application by a defendant for an unredacted copy of a file note of a conference between a solicitor and a medical expert.

The decision includes reference to particular aspects of Victorian court rules which are not uniform across Australia. However issues of legal professional privilege and waiver of privilege are also discussed.

At [65] the court noted that it is widely accepted that disclosure of an expert report will involve an implied waiver of privilege with respect to the brief of instructions and documents provided to the expert. In relation to file notes, the court appears to have accepted that the communications that are recorded in file notes must be examined to determine whether there is anything in those communications which influenced or underpinned the expert’s report and hence warranted disclosure (at [71]). See also [106].

More novel was an argument, accepted by the court, that the notes of a conference may constitute a supplementary report in certain circumstances, requiring service in that form or as a supplementary report.

  1. However, it is clear that either on 30 September 2016 or at another unknown time, a conference was held by Jamie’s current solicitors with Dr Harbord in relation to his earlier report of 13 March 2014.  The notes of this conference are in the same handwriting as the notes of the 30 September 2016 conference, although they start on a separate page and are headed by a the initials LW/CH, and a phone number, presumably Dr Harbord’s phone number.  The pages after the first page are numbered 2 through to 6, suggesting that this is a separate conference from the conference relating to the medical examination, even if it occurred on the same date.
  1. There is no supplementary report dealing with the matters addressed during that conference and no typed up notes of conference provided to Dr Harbord for him to adopt.
  1. It is clear in my view that these six pages of notes do constitute ‘a supplementary report’ pursuant to r 44.03(3) and, given that no formal supplementary report appears to have been sought in relation to this conference and signed notes of conference have not been provided, these notes should be signed by Mr Harbord or converted into a report and served on Monash Health.



New edition: Australian Medical Liability

A third edition of our book, Australian Medical Liability, is due for release in mid July, in paperback and ebook formats.

This new edition obviously updates the case law and provides a separate chapter dealing with intentional acts with intent to cause harm. There are new chapters dealing with confidentiality and litigation, expert evidence, the role of the coroner in the context of medical treatment and some aspects of professional conduct.

Pre-orders on the LexisNexis website (before 30 June) provide a 10% discount.


Australian Medical Liability, 3rd Edition

Bill Madden, Janine McIlwraith &  Benjamin Madden

LexisNexis 2017.

AustMedicalLiability_3rd_cover image

Psychiatrist liability for patient violence: US developments

Writing for the Harvard Bill of Health blog, Alex Stein today reports:

In a recent decision, Volk v. DeMeerleer, 386 P.3d 254 (Wash. 2016), the Washington Supreme Court relaxed the “control” prerequisite for psychiatrists’ duty to protect third parties against violent patients.

The Court made this decision in a case involving a psychiatric patient who murdered his girlfriend and her nine-year old son and then committed suicide (after attempting to kill the girlfriend’s older son as well). For nine years leading up to that tragedy, the patient received outpatient care from the defendant psychiatrist, during which he expressed suicidal and homicidal ideations (without naming the potential victims).

The Court held that the psychiatrist had a “special relationship” with the victims because he was able to control the patient. Correspondingly, the psychiatrist had a duty to exercise “reasonable care to act consistent with the standards of the mental health profession, in order to protect the foreseeable victims of his or her patient.” The Court reasoned in this connection that some ability to control the patient’s conduct is sufficient for the “special relationship” and the consequent duty of care to exist. For that reason, psychiatrists should assume responsibility not only for an inpatient’s actions, but also in connection with an outpatient’s violence against third parties.

The Court explained that “Even bearing in mind the lesser amount of control available to mental health professionals in the outpatient setting, sufficient control nevertheless exists to recognize the duty. There are a number of preventative measures mental health professionals can undertake in the outpatient setting, even without actual custodial control …. in order to mitigate or prevent their patients’ foreseeable violent-actions. Given this reasoning, we find that absolute control is unnecessary, and the actions available to mental health professionals, even in the outpatient setting, weigh in favor of imposing a duty.”

The Court also mentioned that a psychiatrist’s obligation to protect third parties against patients’ violence will normally set aside her confidentiality obligation to the patient.