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Insights

Health Bulletin

RK Health Insights 14 November 2017

The latest insights from our Health Law team.

In this edition:

Learn more about Russell Kennedy's expertise in the Health sector here.

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Immediate action taken to suspend medical practitioner

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Dr Mahmood Ahmad prescribed opioids and other controlled substances while undertaking medical practice in Alaska, USA in 2015 and 2016. His Alaskan medical licence was summarily suspended by the relevant regulatory authority in June 2016 in relation to these practices.

On 25 August 2016, the Medical Board of Australia ("Board") decided to take immediate action and suspend Dr Ahmad’s Australian medical registration on the basis of his Alaskan registration being suspended, on information provided to the Board about that suspension, as there were serious concerns about Dr Ahmad’s sustained performance issues in that he posed a serious risk to persons.

Dr Ahmad’s Alaskan registration was suspended following complaints from 10 pharmacists of unusual and troubling prescribing practices including new patients without a documented history of being prescribed opioids with simultaneous prescriptions for multiple controlled substances and/or high dose opioids.

Dr Ahmad appealed the Board’s decision.

The Victorian Civil and Administration Tribunal found that the suspension of Dr Ahmad’s Alaskan registration engages the power to take immediate action as the reasons for such a suspension are likely to be relevant to the exercise of the immediate action power in Australia.

The Tribunal ultimately determined that immediate action in the form of suspension was the minimum regulatory action required to protect public health and safety on two bases:

  • Dr Ahmad’s registration had been suspended in another jurisdiction; and
  • Dr Ahmad’s performance posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety.

Read the full judgment here.

New Targeting Zero laws passed: Health Legislation Amendment (Quality and Safety) Act 2017

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The Andrews Government has enacted new legislation that aims to ensure that there are uniform standards of patient care and safety across public hospitals, private hospitals and cosmetic surgery facilities.  The safety and wellbeing of patients was the motivation behind the new Act, which aims to eliminate avoidable harm in Victorian health services and ensure continuous improvement is a key priority.

The Act was passed in Victorian Parliament on 17 October 2017 in response to recommendations from the Targeting Zero: supporting the Victorian hospital system to eliminate avoidable harm and strengthen quality of care report.

The Act will mean that public hospitals, private hospitals and cosmetic surgery facilities are subject to regulation and are all held to the same standards and reporting requirements. 

Jill Hennessy, Victorian Minister for Health, described the Government’s actions as "closing a loophole that has allowed cosmetic surgery to take place in unregulated facilities to ensure patient safety is front and centre".  She stated further that "these laws will drive down avoidable harm and ensure all Victorians get the high quality and safe care they need and deserve, when they need it".

Limits to the tenure of public hospital board members and a requirement that they are "suitably skilled" for the role will be imposed under the Act, as will increased government oversight and intervention powers in respect of these boards.

Private hospitals are also facing significant overhaul, with the Act introducing a range of reporting requirements that allow the government to identify risks to patients and preemptively intervene.

As well as enacting the Act, the Victorian Government is investing nearly $215 million in response to the Targeting Zero report, which includes the establishment of agencies, such as Safer Care Victoria and the Victorian Agency for Health Information.  Safer Care Victoria has already started identifying best practice ideas and initiatives for expansion across the health system and has taken action to monitor and improve the quality and safety of health services in Victoria.

To quote Jill Hennessy, "we’re putting patient safety first and improving the standard of care for everyone – whether they are treated in a public or private hospital or receiving cosmetic surgery".

Read the media release here.

OAIC releases new My Health Record resources

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The Office of the Australian Information Commissioner ("OAIC") has released a range of resources to assist healthcare providers understand their privacy obligations under the My Health Record system. My Health Record is a government initiative which allows individuals online access to their health information.

The OAIC has published written guides and factsheets as well as short videos. The resources cover topics such as privacy, handling sensitive information within the My Health Record system and mandatory data breach notification requirements.

For more information and to access the resources click here.

Has the right to breach patient confidentiality created a common law duty to warn relatives?

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Medical practitioners face a significant conflict between their duty of care, duty to maintain patient confidentiality and their statutory right to inform a relative about a possible genetic condition.

A medical practitioner’s duty of confidentiality is an ingrained ethical (and, in certain situations, legal) duty that most, if not all, practitioners would find extremely difficult to breach.

In the context of genetic information, most patients are willing to voluntarily share information with their relatives should it directly affect their own health.  However, in certain situations, medical practitioners are faced with a situation where they do not have the consent of the patient to disclose information that may affect their relatives.

Following amendments to the Privacy Act 1988 (Cth) to incorporate recommendations from the Essentially Yours report, the disclosure of genetic information without a patient’s consent is now permitted in circumstances where the medical practitioner "reasonably believes that the use or disclosure is necessary to lessen or prevent a serious threat to the life, health or safety of another individual who is a genetic relative of their patient".

Further, the introduction of Australian Privacy Principles ("APP"), specifically APP 6, provides some assistance to medical practitioners as it specifically permits medical practitioners to disclose a patient’s genetic information if the disclosure is conducted in accordance with the guidelines under the Privacy Act 1988 (Cth) and the recipient of the information is a relative of the patient.

The duty of care owed by medical practitioners to their patients has been held to extend to the concept of a "duty to warn" and was confirmed by the High Court to be a duty that medical practitioners owe to their patients.

The case of Rogers v Whitaker (1992) 175 CLR 479 involved a patient who "incessantly questioned" a doctor about possible complications that could arise from her surgery but, despite this, was not warned sufficiently about the risks involved in her treatment.

Following the decision in Rogers and Whitaker, it would appear that any reasonable person "ought to be offered the opportunity to consider their genetic health issues and treatment options". However, to date, case law in Australia has tended to demonstrate that courts are not willing to extend a "positive duty of care" to third parties.  In other words, the law as it stands in Australia is likely to place higher worth on the rights of patients than their relatives who may, in fact, suffer an equally serious level of harm.

Read the Journal article here.