Duty of candour

TheBMJ this week reported that a consultant neurosurgeon who operated on the wrong vertebrae in a patient’s spine then kept his mistake hidden from the patient and his NHS trust has been spared any sanction by a medical practitioners tribunal, despite its finding that his practice was impaired on the grounds of dishonesty. The article states:

Brooke realised his error only three days later when he was writing a discharge letter. But he chose not to inform the patient or the trust. Instead he called the patient after three weeks to see if he was still in pain, which he was, and to offer further surgery, which he later performed.

Brooke told the tribunal that he chose not to disclose the error because the patient was already “in low spirits” and might suffer mentally. He waited three weeks, he said, to allow any placebo effect from surgery to wear off before assessing symptoms. The tribunal accepted this explanation because Brooke was able to show that in three previous cases of wrong site surgery he had always swiftly informed the patient.

Best interests determination: Ventilation withdrawal or innovative treatment

Great Ormond Street Hospital for Children -v- Gard is an inherent (protective) jurisdiction decision (EWHC), for which only a press summary is presently available pending publication of the full reasons for judgment.

The application 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. The  parents of Charlie had apparently raised a large sum by crowdfunding, to enable the treatment.

The press summary indicates:

The GOSH team believe that Charlie can probably experience pain, but is unable to react to it in a meaningful way. Their evidence was that being ventilated, being suctioned, living as Charlie does, are all capable of causing pain. Transporting Charlie to the USA would be problematic, but possible. Subjecting him to nucleoside therapy is unknown territory, for it has never even been tested even on mouse models, but it may (or may not) subject the patient to pain, possibly even to mutations. But if Charlie’s damaged brain function cannot be improved, as all agree, then how can he be any better off than he is now, which is a condition that his parents believe should not be sustained?

It is with the heaviest of hearts, but with complete conviction for Charlie’s best interests, that I find it is in Charlie’s best interests that I accede to these applications and rule that GOSH may lawfully withdraw all treatment save for palliative care to permit Charlie to die with dignity.

With thanks to Julie Brooke-Cowden for drawing my attention to this decision.

Chaperone report: Not meeting community expectations

The Medical Board of Australia (MBA) and Australian Health Practitioner Regulation Agency (AHPRA) today released the report Independent review of the use of chaperones to protect patients in Australia and have accepted all its recommendations. The review found the use of chaperones does not meet community expectations and does not always keep patients safe.

The report recommends three areas for regulatory reform:

  • no longer using chaperones as an interim restriction while allegations of sexual misconduct are investigated
  • establishing a specialist team within AHPRA working with the MBA to improve handling of sexual misconduct complaints, and
  • strengthening monitoring and providing more information to patients in the exceptional cases when chaperone conditions are in place.

Foster parenting claim against the State: Admissions & Model litigant policy

Although not a medical treatment claim, Binge-Grose v State of New South Wales [2017] NSWSC 388 is of interest for its consideration of indemnity costs orders sought by plaintiff following a defendant’s admission of liability.

The plaintiff had claimed damages against the State for injuries alleged to have been sustained by the plaintiff when she was in the care of her foster parents. The plaintiff alleged that the defendant was negligent, both in permitting her to be placed with persons whom it ought to have known were unsuitable foster parents; and in failing to monitor her while she was in their care: [2].

The claim for indemnity costs was made on various bases including that the defendant ought to have admitted liability considerably earlier than it did and, had it done so, substantial costs would have been saved and that the defendant’s delay in making appropriate admissions on the pleadings caused the plaintiff to incur substantial additional costs, and put the defendant in breach of its Model Litigant Policy: [4].

The Court was not critical of the conduct of the claim by the defendant and held that there had been no departure from the Model Litigant Policy: [71], [77], [85], [88].

The Court also commented at [90]:

The basis on which an order for costs is ordered to be paid (ordinary, or indemnity) is largely determined by the defendant’s conduct. It is not determined by the plaintiff’s needs or circumstances. Any successful plaintiff can expect to have to pay any difference between the amount required to be paid to legal representatives and the amount recovered from the defendant pay way of costs (subject to being in a better position as a result of a Calderbank offer or Offer of Compromise).


The medical sector: Oversight and regulatory mechanisms aimed at protecting children from sexual abuse

The medical sector is one of the sectors addressed in a new research report for the Royal Commission into Institutional Responses to Child Sexual Abuse that finds Australian oversight bodies have inconsistent scope and powers in protecting children from sexual abuse in institutions.

Professor Ben Mathews from the Queensland University of Technology was contracted by the Royal Commission to examine the strengths and weaknesses of existing regulatory and oversight bodies in protecting children from sexual abuse.

The executive summary for medical sector regulation makes the following comments in relation to the national scheme, the national boards, public health systems and private hospitals:

An evaluation of narrow efficacy based on legislative and regulatory frameworks, and regulatory theory principles indicate that, overall, aspects of these frameworks – such as the approach to criminal history checks – provide consistent and positive strategies for regulating the health professions. However, there are areas that vary between jurisdictions and professions, such as in legislative and policy-based reporting duties. In addition, there appear to be common areas where there may be opportunities for development, including:

(1) The national scheme: (a) does not appear to engage in any other fitness to practise assessment; and (b) all national boards have a CPD requirement but none includes a component on child sexual abuse or child protection.

(2) The key policies of the boards for medical practitioners and nurses: (a) are not as direct as they might be in reinforcing legislative reporting duties; (b) do not both require or deliver training in child protection; and (c) do not appear to contain helpful resources on child sexual abuse.

(3) The regulatory frameworks of state and territory health departments: (a) are generally, but not always, comprehensive in extending a reporting duty even to non-mandated health professionals; (b) generally, but not always, require training to be delivered or attended, although whether this occurs in practice is difficult to evaluate; (c) generally, but not always, have readily accessible policy documents; (d) generally are not supported by policy documents with extensive and helpful detail; and (e) would generally benefit by having further, well-developed child sexual abuse resources available to assist health professionals.

(4) The regulatory context for private hospitals appears less robust and is likely to be more fragmented than that of the public sector. This means that, while health professionals in private hospitals would be covered by the same national regulatory frameworks and state-based obligations, they may not receive the same regulatory support (such as training and access to resources), or have the same level of state-based policy responsibilities as colleagues in public institutions

Disciplinary protective orders

Although in some ways only a disciplinary matter concerning boundary violations raising the usual issues, Health Care Complaints Commission v Mayr [2017] NSWCATOD 52 is of interest for the scope of the protective orders made. In addition to cancellation of the practitioner’s registration as a psychologist, the orders constrained the practitioner further in that he was prohibited from providing the following health services, whether as public, private or volunteer, unless and until he obtains re-registration as a psychologist:
(a)   community health services;
(b)   counselling;
(c)   health education services;
(d)   mental health services
(e)   supervision or coaching of psychologists, psychology students or any allied health services, and;
(f)   welfare services or any allied health services necessary to implement the above services.

Dependency claim: Proportionate liability and concurrent wrongdoers

Shinwari v Anjoul [2017] NSWCA 74 is a decision today of the Court of Appeal of New South Wales. Leave to appeal was granted as the decision concerns an  important question concerning the inter-relationship between the Compensation to Relatives Act 1897 (NSW) and the Civil Liability Act 2002 (NSW).

Ms Tobei Anjoul, the infant daughter of the late Grace Yates (the deceased), brought a claim against the appellant, Dr Mohammad Shinwari, seeking to recover damages in respect of the death of her mother which resulted from personal injury caused by Dr Shinwari’s negligence.

Dr Shinwari was employed by the Psych N Soul Clinic. The deceased underwent “rapid opiate detoxification” to treat her opiate addiction at the Clinic and suffered a cardiac arrest that afternoon. She died the following day, shortly after life support was withdrawn.

Ms Anjoul brought proceedings pursuant to s 3 of the Compensation to Relatives Act against Dr Shinwari alleging that her mother had died in consequence of his failure to exercise reasonable care and skill in the provision of advice and treatment in relation to her mother’s opiate addiction (dependency claim).

In his defence, Dr Shinwari contended that the dependency claim fell within the definition of an “apportionable claim” under s 34(1)(a), Pt 4 of the Civil Liability Act as it was a claim for economic loss not “arising out of personal injury” as the latter expression is defined in s 5 of the Liability Act. He further pleaded that, if he was liable, R & D Counselling and Group Therapy Pty Ltd (R & D), the owner of the Clinic, and Dr Ross Colquhoun, director of R & D, were concurrent wrongdoers and, accordingly, any damages Ms Anjoul may recover from him should be apportioned between them pursuant to Pt 4 of the Liability Act.

The primary judge determined separately the question of the application of Pt 4 of the Civil Liability Act to the dependency claim. His Honour held that Pt 4 did not apply to the claim and struck out the paragraphs of Dr Shinwari’s defence particularising his claim against Dr Colquhoun and R & D. Dr Shinwari sought leave to appeal, and to appeal, against his Honour’s decision.

Drawing from the headnote:

Held, granting leave to appeal but dismissing the appeal per McColl JA (Gleeson JA and Emmett AJA agreeing)

(1)   On its proper construction the dependency claim was one “arising out of personal injury” within the meaning of s 34(1)(a) of the Civil Liability Act. Accordingly, Pt 4 of the Civil Liability Act did not apply to the dependency claim: [74], [97] – [98], [101]; [103]; [128].

(2)   To succeed in the dependency claim, it would be necessary for the respondent to establish that the deceased would have had a right of action, if death had not ensued, to recover damages in respect of personal injury which was caused by the appellant’s “wrongful act, neglect, or default” and was the cause of the deceased’s death: [79] – [81], [97], [111].

(3)   For the purposes of the phrase “arising out of personal injury” in s 34(1)(a) of the Civil Liability Act, a causal relationship must exist between the “claim” and the “personal injury” such that the former “arises out of” the latter. As proof of the dependency claim required determining whether the deceased would have been able to maintain and recover damages in respect of the wrongful act etc which led to her death, the dependency claim was one “arising out of personal injury”. It is not necessary that the claim referred to in s 34(1)(a) arises out of a personal injury suffered by the plaintiff making the claim: [89] – [97], [110].

Expert witness immunity: Journal of Law & Medicine

The Journal of Law and Medicine (Thomson Reuters) has today kindly published an article by Tina Cockburn and me: Expert witness immunity in Australia after Attwells v Jackson Lalic Lawyers: A smaller and less predictable shield? (2017) 24 JLM 628.

The abstract reads:

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 article outlines the decision in the Attwells case and after reviewing Australian authority on expert witness immunity argues that, given the recent narrowing of the scope of advocates’ immunity, similar limitations are likely to be placed on the scope of expert witness immunity with two effects – it will be less commonly available and less predictably available.


Defamation imputations regarding medical treatment

Grygiel v Australian Broadcasting Corporation [2017] NSWSC 355 is an interlocutory decision in proceedings for defamation commenced by Dr John Grygiel against the Australian Broadcasting Corporation. The claim arose out of the broadcast of a segment on the 7.30 Report concerning the doctor’s alleged administration of what is described in the programme as an “under-dose” of treatment for cancer patients at St Vincent’s Hospital.

The defendant argued that two of the imputations specified by the plaintiff were not reasonably capable of arising, being that:

  • The plaintiff, a medical oncologist, by prescribing an under-dosage of chemotherapy for 70 cancer patients, had reduced their chance of surviving cancer.; and
  • The plaintiff’s incompetent prescribing of an incorrectly low dosage of chemotherapy for cancer patients was comparable in culpability to a bungle at two Adelaide hospitals where a number of patients were given an incorrect under-dosage of chemotherapy and one of them died.

The court held that a number of the features of the matter complained of combine to the result that the ordinary reasonable viewer could reasonably understand the matter complained of in the sense contended for by the plaintiff.

The imputations were therefore left for consideration by a jury.


Inquest into the death of Irene Magriplis

Published today were the findings of the Inquest into the death of Irene Magriplis [2017] NTLC 008, a decision of Coroners Court at Darwin.

Irene Magriplis died of sepsis caused by bile leaking into her abdomen after elective surgery at the Darwin Private Hospital (a hospital that did not have an ICU). The surgery was to remove a growth adjacent to her bile duct. At the time, Her surgeon was of the opinion that this elective surgery was necessary, but later conceded that it was not.

The findings are of interest for addressing the high risk nature of the surgery such that it should only be carried out after multidisciplinary team review and then in an adequately resourced hospital: [21] – [23].

The Coroner referred the findings to the Medical Board of Australia: [210].

The Coroner also recommended (at [211] – [213]) that:

  • the hospital not permit high risk surgery to be undertaken where it does not have the resources to mitigate those risks.
  • the hospital implement an escalation system to provide a proper rapid team response when the rapid response criteria are met.
  • should the hospital continue to operate a High Dependency Unit that it be properly and appropriately resourced and in conformity with Standard 9 of the National Standards on Safety and Quality in Health Care and the Guidelines of the College of Intensive Care Medicine of Australia and New Zealand.