Writing this week for the Hicksons Health Law blog, Karen Kumar draws attention to a recent decision Templar v Watt (No 3) [2016] NSWSC 1230, which addresses the extended definition of conduct in trade and commerce under the Australian Consumer Law.

Ms Kumar notes an increase in the number of allegations in medical negligence claims against public health services asserting a breach of provisions of the ACL in relation to the quality of the care provided.

Although providing a good overview of the law on “in trade or commerce”, the Templar decision is perhaps of limited use as a precedent on the provision health services generally, or at least private health services. It focused on the sending of an email by a medical practitioner to the NSW Department of Education and Communities, expressing concern about the provision of hearing tests in schools by a particular provider: [6].

McCallum J noted that the email was sent by a medical practitioner who, by virtue of his position and for reasons concerned with the public interest, fell under a professional duty to impart information (regarding his concerns): [109].

Ms Kumar’s article concludes:

Given the number of medical negligence matters which contain allegations of breaches of the ACL we anticipate that the issue of whether public health services can be the subject of such claims will likely come before the courts in the not too distant future.

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