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Insights

Health Bulletin

RK Health Insights 20 April 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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Insufficient evidence for the safety of e-cigarettes

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The National Health and Medical Research Council (NHMRC) has updated the public on the latest evidence for the safety of e-cigarettes.  The statement from CEO Professor Anne Kelso AO concludes that “there is currently insufficient evidence to support claims that e-cigarettes are safe, and further research is required to enable the long-term safety, quality and efficacy of e‑cigarettes to be assessed”.

Since 2011, the NHMRC has spent close to $6.5 million for research into e-cigarettes.  The outcome of this research should become available from 2018.

The statement comes as the Therapeutic Goods Administration has recently upheld the ban of nicotine in e-cigarettes, finding there is insufficient evidence that the benefits of e-cigarettes over tobacco outweigh the risks associated with nicotine addiction and the health impacts of e-cigarettes or “vaping”.  While nicotine use in e-cigarettes is legal in the United Kingdom and United States, Australia and New Zealand continue to enforce the ban as good public policy.

The NHMRC’s statement is available here.

More information regarding the banning of nicotine in e-cigarettes is available here.

Privacy breach by Melbourne hospital after medical records found in gutter

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John Fawkner Private Hospital is under investigation by the Information and Privacy Commissioner after hard copy medical records for 31 patients were found in a gutter near the hospital in February 2017.  A local resident sent the documents to the Victorian Health Complaints Commission and Office of the Australian Information Commissioner.  The medical records contained sensitive information including patient names, ages and diagnoses.

There is currently no requirement that the hospital notify the patients that their privacy has been breached.  However, this is about to change.  The Australian Government has passed the Privacy Amendment (Notifiable Data Breaches) Act, which will ensure affected people are notified when serious privacy breaches occur.  The Act is likely to come into effect on 23 February 2018 (unless an earlier date is fixed) and will apply to all entities bound to comply with the Australian Privacy Principles under the Privacy Act 1988 (Cth).

Revised Code of Ethics for doctors

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The Australian Medical Association has revised the Code of Ethics for the first time since 2006.  The revision sees a number of new parts dealing with issues faced by medical practitioners, such as personal relationships, patients with impaired or limited decision-making capacity and working with colleagues and other health care professionals (including bullying and harassment).

The revision also includes other amendments that provide clarity on consent, conscientious objection, professional boundaries and protecting others from harm.

More information can be found here.

Director of Consumer Affairs Victoria v Gibson [2017] FCA 240

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Wellness blogger Belle Gibson has been found guilty of a range of offences under the Australian Consumer Law.  Proceedings were brought by the Director of Consumer Affairs Victoria in relation to representations made by Ms Gibson.  Media pressure led to Ms Gibson publicly admitting in March 2015 that she had fabricated claims of having terminal brain cancer.  She was held to have breached section 18 in misrepresenting that she had cured herself through diet and a rejection of conventional medical treatment.  Further, in making representations to have given donations to different charities that were fundraised through the sale of her successful smartphone app and book, both called The Whole Pantry, Ms Gibson was found to have engaged in unconscionable conduct and misleading and deceptive conduct under sections 18 and 21.

Ms Gibson’s representations were not considered to be testimonials and therefore the Director’s claims under section 29 failed.  Of particular note was that Ms Gibson’s representations about having terminal brain cancer did not amount to unconscionable conduct as Justice Mortimer was not satisfied that she did not believe she had cancer.  She may have, in fact, had “psychological or psychiatric issues” and as a result “remained under some kind of delusion that she had cancer”.

Ms Gibson did not participate in the proceedings and did not present a defence.

The Federal Court decision can be read here.

More information can be found here.