Applications for consent to special medical treatment

NXM [2014] NSWCATGD 52  saw an application in early 2014 for consent to special medical treatment, being an hysterectomy with ovarian conservation for an 18-year-old woman. The tribunal was required to consider whether the treatment was necessary to save the patient’s life or prevent serious damage to the patient’s health.

Miss NXM has a severe intellectual disability and Chromosome 17 Duplication. The proposed surgery was for the purpose of the permanent elimination of menstruation which in the case of Miss NXM is “heavy and troublesome menstruation”. Medical evidence suggested that the patient had an inability to look after her own hygiene.

The Tribunal was satisfied that the evidence provided by Dr KGF and Dr DVB establishes that hormonal treatments for stopping Miss NXM’s menstruation carry significant risk for Miss NXM.

At [68] – [69] the Tribunal concluded that in the absence of further evidence in the form of assessments and opinions from mental health professionals, the Tribunal could not be satisfied that these matters are such that they need to be addressed to prevent “serious harm” to Miss NXM’s mental health. The test set out in the Act is not a “best interest” test, but the more stringent test as mentioned above.

NXM (No 2) [2014] NSWCATGD 53 saw a subsequent application, with more detailed evidence provided. On that occasion the Tribunal consented to the hysterectomy with preservation of ovaries under general anaesthetic on the basis that the proposed special treatment was necessary to prevent serious damage to Miss NXM’s health.

Information & warnings: Singapore Court of Appeal

Hii Chii Kok v Ooi Peng Jin London Lucien and another [2017] SGCA 38 concerned a patient whose central complaint was that he underwent a major pancreatic surgery that turned out to be unnecessary. The issue provided the court with an opportunity to revisit its earlier decisions favouring the Bolam / Bolitho determination of the standard of care for provision of information to patients.

At [2] the court said:

The question before us in this appeal is whether we too should gravitate towards a more patient-centric approach. If so, should such an approach apply to all aspects of the doctor’s interaction with the patient? And insofar as we do apply a patient-centric approach, how should the court prescribe the test for determining whether the standard of care has been satisfied?

The Attorney-General felt constrained to intervene having regard to the possible consequences that the decision might have on the cost of healthcare.

The court (at [4]) saw it as:

…appropriate to move towards a somewhat more patient-centric approach when prescribing the standard of care in relation to the doctor’s duty to advise the patient and to provide the patient with the requisite information to enable him to participate meaningfully in decisions affecting the medical treatment he will receive. This is a function of the central principle that the patient has autonomy over such matters. However, this will not mean that the doctor’s views will cease to be significant. In our judgment, the appropriate standard of care is one that strikes a balance between the interests of the doctor and the patient.

Extensive discussion (the judgment runs to 112 pages, but the principles are dealt with at [52] – [163]) of the provision of information included comment on the UK Montgomery decision, the Australian Rogers v Whitaker decision and the Australian Review of the Law of Negligence.

NDIS Code of Conduct: Discussion paper

A new National Disability Insurance Scheme Quality and Safeguarding Framework has been developed to ensure that all NDIS participants can access high quality and safe supports. The Framework includes the following:

  • a Code of Conduct;
  • provider registration, including quality assurance;
  • a complaints handling system;
  • reportable incident notification;
  • behaviour support and restrictive practice oversight;
  • investigation and enforcement; and
  • nationally consistent worker screening.

One aspect of the new NDIS Quality and Safeguarding Framework is the NDIS Code of Conduct. It is said that the final Code of Conduct will be enforceable by law and will include sanctions for breaches of the Code. It will come into effect once the NDIS is at full-scheme.

The Code of Conduct will be overseen by a NDIS Quality and Safeguards Commission, announced by the Commonwealth Government on 9 May 2017

A discussion paper is available, inviting responses by 21 June 2017. Aspects covered in the paper include:

  • Prevention of violence and exploitation;
  • Privacy;
  • Sexual misconduct;
  • Record keeping;
  • Professional liability insurance.

With thanks to Timothy Bowen for noting this development.

Informed consent and clinician experience information

Now available online from the UNSW Law Journal as an advance copy is an article by Rebekah McWhirter, ‘Informed Consent and Performance Data: Clinician Experience as a Material Risk’ (2017) 40(2) University of New South Wales Law Journal. Drawing from the introduction:

As the collection, analysis and dissemination of surgical performance data becomes increasingly commonplace, it is worth determining whether, and under what circumstances, a surgeon has a duty to disclose this information to his or her patients. This article will first establish the extent to which surgical skill has been an issue in failure to warn complaints in the past, and the potential for it to be a significant future issue. The duty to warn will then be assessed with reference to statutory obligations and relevant case law. Finally, policy considerations arising from a duty to disclose performance data will be explored to identify possible future limits.


Ethics in the practice of law: a profession, a business or both?

The second event in the Australian Academy of Law ethics series will be held at 5.30pm, Tuesday 20 June at the Federal Court of Australia in Sydney. The topic for the upcoming event will be “Ethics in the practice of law: a profession, a business or both?”


Chair and moderator:

  • Fiona McLeod SC, President of the Law Council of Australia


  • Donald Robertson, Partner, Herbert Smith Freehills and Adjunct Professor of Law, University of Sydney Law School
  • Noel Hutley SC, Barrister Sydney and former President of the New South Wales Bar Association
  • Dr Attracta Lagan, Ethicist and Founder of “Managing Values”
  • John McKenzie, Legal Services Commissioner for New South Wales
  • Dr Linda Tucker, Chairperson, Community Legal Centres New South Wales

There will be no charge to attend the event and it will also be open to the public. To register for this event, please complete the online registration form at by Friday 16 June 2017.

NDIS: Whether supports beneficial and most appropriately funded through NDIA

King v National Disability Insurance Agency [2017] AATA 643 saw Ms King apply to the Tribunal for review of a decision that certain supports she applied for were not considered reasonable and necessary supports under s 34 of the Act. She had sought the inclusion of an additional 20 hours of physiotherapy and a gym membership as supports in her statement of participant supports. The NDIA modified its position at hearing, such that the Agency agreed to pay most of the gym membership fee and most of the physiotherapy claimed.

In relation to the gym membership, at [15] the Tribunal said that the NDIA had recognised this support as being reasonable and necessary: “Considering the recent decision of McGarrigle v National Disability Insurance Agency [2017] FCA 308[6], the Tribunal considers the cost of this support should be funded by the NDIA in full…”.

In relation to the physiotherapy:

  • The Tribunal was satisfied that the treatment represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative supports: [26d]
  • The funding or provision of the physiotherapy treatment as recommended took account what it is reasonable to expect of families, carers, informal networks and the community to provide. It was not a support that others can safely provide: [26f].
  • The physiotherapy treatment was most appropriately funded or provided through the NDIS, and was not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered: [26h].



Management of practitioners with health impairments

Health Care Complaints Commission v Paris-Browne [2017] NSWCATOD 70 is a disciplinary matter in which misconduct was alleged in the antenatal care of patient with severe pre-eclampsia. The practitioner had, by the time of the hearing, ceased to practice.

Of interest is the following, unfortunately brief, passage at [64] – [68]:

Wider Issues

  1. Finally, we wish to observe that there are issues raised by this case of a wider, systemic kind.
  2. The first set of issues relate to appropriate management of practitioners with health impairments. The practitioner stated that he sought from hospital management during 2014 a change in duties that would have taken him out of on-call obstetric duties, because of the increasing difficulty he was experiencing in coping with the physical demands involved following treatment for cancer, and was rebuffed. He said he felt that he was compelled to continue as directed, as the only other choice provided was resignation from all work.
  3. Later in his statement, he said that after ‘the full force of the calamity which befell [Patient A] and my part in the outcome hit me’ he had a meeting with management which led quickly to a decision he agreed with standing him down from all on call duties and allowing him to continue performing elective gynaecology.
  4. We are not making any finding in regard to the accuracy or otherwise of this account. These matters lie outside the scope of our task in these proceedings.
  5. There are other observations by Professor Pepperell in his report that relate to broader aspects of clinical management and practice at the time of the events the subject of these proceedings. Again, they are not germane (in an immediate sense) to the task we are called on to perform in these proceedings. However, they deal with contextual factors that, on their face, contributed to the failures of performance of the practitioner. The NSW Department of Health should, we think, consider again the broader health care and managerial concerns raised by this case.


Medical practitioner: Sentencing remarks

A medical practitioner previously convicted for the murder of his wife was today sentenced to a term of imprisonment: R v Crickitt (No 2) [2017] NSWSC 542.

Relevant to the objective seriousness of the offence was the fact that the offender was the treating doctor of the victim. The sentencing judge stated at [31]:

An important aspect of the offending is that it involved a very serious breach of trust. Not only was the deceased the offender’s wife and as such entitled to trust the offender as her partner and husband of many years, but he had been her treating doctor for some years. As her treating doctor, he prescribed for her various medications covering a range of conditions. The deceased undoubtedly trusted the offender’s judgment and decisions in relation to the treatment of those conditions and her health generally.

The sentencing judge further commented on the significance of an abuse of trust by a medical practitioner, at [61]:

The abuse of trust which characterised this offence is not to be tolerated in our community. Medical professionals and doctors, such as the offender, who misuse the trust placed in them by those to whom they provide treatment and care by committing serious criminal acts against them, should know that they will be held accountable and will be met with heavy punishment.


Problematic Expert Evidence: Civil, Disciplinary and Court Responses

The Civil Justice Research Group, Melbourne Law School, is hosting a lunchtime seminar on Thursday 11 May 2017. Associate Professor Tina Cockburn and I have been asked to speak on the topic of problematic expert evidence – civil, disciplinary and court responses.

There is no cost to attend but for catering purposes, online registration is required.

Expert witnesses act as ‘injury brokers’ in contributing to the analysis of what qualifies as legally recognised and compensable injury in medical negligence litigation. The orthodox approach in Australia is that expert witnesses, like advocates, are immune from suit in negligence. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16, the High Court of Australia upheld, but narrowed, advocates’ immunity. This discussion will focus on whether that recent narrowing of the scope of advocates’ immunity will lead to similar limitations on the scope of expert witness immunity and will address other available responses in the event of problematic expert evidence.


‘Gard’ decision: Reasons for judgment

Great Ormond Street Hospital for Children -v- Gard [2017] EWHC 972 (Fam) was previously noted, when  only a press summary was available pending publication of the judgment. The reasons for judgment are now available.

The matter was an  inherent (protective) jurisdiction decision which concerned the withdrawal of ventilation (as sought by the clinicians) or the provision of innovative nucleoside therapy in the USA (as sought by the parents)  for an 8 month old child, Charlie Gard.