Published Articles

 

These articles were drafted by Health Legal solicitors and were first published in the Australian Health Law Bulletin.

 

 

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2016 Australian Health Law Bulletin Vol.24 No.8

Consent and informed decision-making: Central Queensland Hospital and Health Service v Q

The High Court of Australia has held that parents are able to consent to medical treatment performed on their children unless the treatment is a “special medical procedure” requiring court authorisation.

This article looks at Central Queensland Hospital and Health Service v Q, a recent decision of the Supreme Court of Queensland which held that an abortion is a special medical procedure and which draws attention to the debate over whether termination procedures fall into the class of “special cases” identified by the High Court.

Chris Chosich and Claudia Hirst
September 2016

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2016 Australian Health Law Bulletin Vol.24 No.4

WCH v Mental Health Tribunal — a consideration of the treatment criteria for community treatment orders under the Mental Health Act 2014 (Vic)

In WCH v Mental Health Tribunal, the Victorian Civil and Administrative Tribunal (VCAT) was asked to consider whether a community treatment order of the Mental Health Tribunal should be revoked because the mandatory treatment criteria set out in the Mental Health Act 2014 (Vic) (MH Act) were not satisfied. Relevantly, WCH submitted that the community treatment order had taken away his rights as a citizen and infringed his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter of Human Rights). WCH had been diagnosed in 1993 with schizophrenia and treated in the community for the past 16 years on community treatment orders made by the Mental Health Review Board and its successor, the Mental Health Tribunal. Relevantly, WCH did not believe he had schizophrenia. The Tribunal found that evidence before the Tribunal did not demonstrate that WCH had a mental illness as defined in the MH Act and therefore ordered that the community treatment order should be revoked, noting that this was consistent with WCH’s rights under the Charter of Human Rights.

Anne Howard and Claudia Hirst
May 2016

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2015 Australian Health Law Bulletin Vol.23 No.8

Inquest into the death of Dean Laycock — a consideration of the decision to reduce the leave period of a voluntary inpatient at a mental health facility without consultation with the patient

The Inquest into the death of Dean Alan Carlson Laycock (the Inquest) concerned the death of a voluntary mental health patient by suicide following discharge over the Christmas period. The coroner’s findings focused on the necessity for the facility to have adequate policies and procedures in place for leave planning, including consultation with the patient and family members as appropriate.

Anne Howard and Claudia Hirst
Sept 2015

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2015 Australian Health Law Bulletin Vol.23 No.5

Assault and battery claim against dentist who allegedly performed wholly unnecessary dental treatment with no therapeutic purpose — White v Johnston

This case was an appeal from the decision of the New South Wales District Court in Johnston v Dr Jasmin White’s Dental Surgery Pty Ltd. In this case, Ms White successfully appealed the primary judge’s finding that she carried out treatment that was ineffective with no therapeutic purpose and which amounted to assault and battery. Ms White was also successful in challenging the awarded exemplary damages of $150,000. The New South Wales Court of Appeal ordered a retrial.

Claudia Hirst, Anne Howard and Marine Giral
June 2015

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2015 Australian Health Law Bulletin Vol.23 No.2

Application of foreign common law and statute by Australian court inmedical negligence claim: O’Reilly v Western Sussex Hospitals NHS Trust (No 6)

In this case, the plaintiff, Mrs O’Reilly (who is the widow of Dr O’Reilly) sued two colorectal surgeons and the hospital where they worked in negligence for failing to adequately examine her husband’s left colon and subsequently failing to detect a cancerous tumour that caused (or at least contributed to) his death. Justice Garling of the Supreme Court of New South Wales (the Court) found in favour of the plaintiff, being satisfied that Dr O’Reilly died two years earlier than he otherwise would have but for the defendants’ negligence and awarded the plaintiff damages in the value of the dependency of the late Dr O’Reilly.

Although this case concerns the application of English case law and statute it is nevertheless instructive as a demonstration of the Court’s reasoning in determining a medical negligence claim when applying similar common law and statute to that in Australia.

Anne Howard and Claudia Hirst
March 2015

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2014 Australian Health Law Bulletin Vol.22 No.10

AJD v Royal Prince Alfred Hospital — a consideration of use and disclosure of health information of a parent contained in a child’s medical record

Medical records held for the two children of AJD (the Applicant, who remained anonymous) were released to the father of the children (the father) by their treating hospital, the Royal Prince Alfred Hospital (the Respondent), upon the father’s request. These medical records contained information regarding the Applicant’s health. The Applicant sought an internal review and upon a finding that the decision did not breach NSW state privacy laws, applied to the NSW Civil and Administrative Tribunal (the Tribunal) for external review of the Respondent’s conduct under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act) and the Health Records and Information Privacy Act 2002 (NSW) (the HRIP Act).

Anne Howard and Meg Jones
Nov/Dec 2014

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2014 Australian Health Law Bulletin Vol.22 No.8

Reducing the risk of uterine rupture in induced labour — coronial recommendation for the development of clinical guidelines

On the evening of 17 November 2011, Aurora Sleep was delivered by emergency caesarean section at 38 weeks gestation. During the emergency caesarean, it was discovered that Aurora and the placenta had moved into her mother’s abdominal cavity as a result of a uterine rupture, which led to Aurora being “deprived of life sustaining oxygen”. Consequently, Aurora died four days later from hypoxic brain injury.

Anne Howard and Meg Jones
September 2014

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2014 Australian Health Law Bulletin Vol.22 No.5

Withdrawal of life-sustaining medical treatment

The Hunter New England Local Health District is the operator of the John Hunter Hospital (the Hospital) and was the plaintiff in this proceeding before the NSW Supreme Court. JS (a 27-year-old patient of the Hospital and the defendant in this proceeding) suffered from quadriplegia and related medical complications and did not wish to continue to receive life-sustaining medical treatment. JS made his wishes clearly known to the Hospital and the Hospital sought a declaration from the court to the effect that the responsible medical practitioners could lawfully discontinue mechanical ventilation and other life-sustaining treatment.

Justice Darke concluded that JS had the capacity to decide to refuse mechanical ventilation, and that his decision was freely given and based on adequate information. Accordingly, Darke J made the declaration sought by the Hospital that the medical practitioners and staff of the Hospital would be acting lawfully if they acted in accordance with JS’s request that he be disconnected from mechanical ventilation.

Alon Januszewicz
June 2014

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2014 Australian Health Law Bulletin Vol.22 No.4

Clark v Macourt

Clark v Macourt was an appeal before the High Court of Australia of the decision of the NSW Court of Appeal in Macourt v Clark. The Court of Appeal decision and the decision at first instance have previously been reported in the Australian Health Law Bulletin. The case concerned the assessment of damages for breach of contractual warranties relating to frozen donor sperm. The sperm was acquired as part of the purchase of the assets of a fertility clinic business by a medical practitioner, Dr Clark.

The High Court allowed the appeal of Dr Clark and reaffirmed that the principle that applies for assessing damages for breach of contract is that the damages awarded should put the promisee in the same position, so far as money can do it, as it would have been in had the broken promise been performed.

Giovanni Marino and Claudia Hirst
May 2014

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2014 Australian Health Law Bulletin Vol.22 No.3

Court authorises hospital to perform an elective caesarean where the patient lacked capacity — a consideration of what is in the best interests of the patient

On 28 January 2014, in Great Western Hospitals NHS Foundation Trust v AA, BB, CC, DD, the English High Court granted declaratory relief to the Great Western Hospitals NHS Foundation Trust (the Hospital), allowing the Hospital to perform an elective caesarean on a mentally ill pregnant woman (AA) who lacked capacity to consent. The Hospital brought the application in circumstances where AA’s membranes had ruptured and AA was noncompliant with attempts at medical assistance and was unable to understand the seriousness of her condition. At the time of the application, a caesarean was clinically indicated, but there was no suggestion that the caesarean was proposed as emergency treatment.

The court concluded that the treatment was in AA’s best interests and, if she were able to understand her condition, she would have followed the advice of her doctors to have the caesarean.

Although this case concerns the application of UK case law, it is nevertheless instructive as a demonstration of a court’s decision-making process in determining whether an elective caesarean was in a patient’s best interests.

Anne Howard and Christopher Sykes
April 2014

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2013 Australian Health Law Bulletin Vol.21 No.10

Assessment of damages on uncontested evidence: Patterson v Khalsa (No 3)

In these proceedings, the plaintiff brought an action in negligence against a midwife, claiming that the midwife was negligent in recommending a home birth and also negligent in the performance of her duties during the birth. The NSW Supreme Court had found for the plaintiff in earlier proceedings and Patterson v Khalsa (No 3) fell to the assessment of the plaintiff’s damages in circumstances where the defendant elected not to participate in the proceedings and was unrepresented.

Alon Januszewicz
December 2013

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2012 Australian Health Law Bulletin Vol.20 No.7

The defence of peer professional opinion revisited

Brakoulias v Dr Karunaharan (Ruling) (Brakoulias) is the first case to be heard in Victoria regarding the proper construction of s 59 of the Wrongs Act 1958 (Vic) (the Wrongs Act). The court was required to determine whether s 59 displaced the common law standard of care with respect to “professionals” as defined in the Wrongs Act.

The Victorian Supreme Court held that the plaintiff will need to discharge the burden of proving negligence of a professional in accordance with the common law standard stated in Rogers v Whitaker (Rogers), but the defendant has a defence under s 59 of the Wrongs Act if she proves that her practice was consistent with peer professional opinion, and the opinion is not unreasonable. In other words, s 59 provides a statutory defence for health practitioners in a common law negligence claim, but does not supersede the common law standard of care required by professionals, as described in Rogers.

Alon Januszewicz and Giovanni Marino
August 2012

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