Local medico-legal matters
There have been several amendments to state and territory legislation recently that impact doctors. We have also seen some emerging trends in matters that we are supporting members on. Avant’s medico-legal experts in each jurisdiction highlight these local issues.
New South Wales
Australian Capital Territory
Joanne Girgenti, Senior Solicitor, WA
New medicine and poison laws introduced in January in WA will help doctors prescribe controlled drugs more safely and better identify and regulate doctor-shopping patients. The Medicine and Poisons Regulations (WA) 2016 establishes a legal framework for the transfer of information around prescribing and dispensing controlled drugs such as morphine and dexamphetamine, through the use of real-time reporting systems.
We regularly support members with issues around prescribing and managing drug-dependent patients. Under the new regulations, doctors are required to keep more detailed information regarding the supply of S4 and S8 medications to patients. The legislation also enhances doctors’ powers to manage ‘doctor shoppers’, imposes greater penalties for prescribing to drug-dependent patients and outlines when a pharmacist must cancel a script.
Megan Prideaux, Senior Solicitor, Avant Law, SA
The Health Care (Miscellaneous) Amendment Act 2016, meant to commence on 1 July 2017, has been delayed until 1 May 2018. This is because stakeholders expressed concern with the wording of the subordinate legislation, the Health Care (Private Day Procedure Centres) Variation Regulations 2017.
The changes prohibit ‘prescribed health services’ being carried out in private day centres unless the centre is licensed. This was to include procedures that involve the administration of general, spinal, epidural or local anaesthetic, or intravenous sedation (but did not apply to the use of conscious sedation or the administration of local anaesthetic by GPs or dentists). This would have prevented specialists and other health practitioners from performing minor, low-risk or minimally invasive procedures at unlicensed premises such as private rooms, contrary to the intention of the government. SA Health has taken these concerns on board, and it’s likely the NSW approach will be adopted.
Morag Smith, Senior Solicitor, Avant Law, WA & NT
Under the Northern Territory’s (NT) Motor Vehicles Act, all doctors in the NT must report patients they reasonably believe are ‘physically or mentally incapable of driving’ to the Motor Vehicle Registry (MVR). This is unlike the legislation in most other states, which obliges only the patient to report. This often puts doctors in the tricky position of having to balance their duty of confidentiality to the patient, with their obligation to report.
Our medico-legal advisors often provide advice to members who must undertake the difficult task of reporting a patient as being unfit to drive. Doctors should always communicate their concerns about fitness to drive with the patient before reporting them to the MVR and document this discussion with the patient, the findings and reasons for concern.
Dr Kelly Nickels, Claims Manager and Medical Advisor, VIC
In a controversial move, Victoria could be the first state to legalise voluntary physician-assisted dying for terminally ill people. The move follows the Victorian Legal and Social Issues Committee’s Inquiry report into end-of-life choices, recommending the introduction of assisted dying legislation in Victoria. A discussion paper has been released about the proposed legislative framework. Avant has not taken a position on voluntary-assisted dying, but has made a submission arguing that any legislation should incorporate sufficient protections for doctors.
The Victorian Parliament is planning to vote on the legislation in the second half of 2017. The legislation could have significant implications, particularly for GPs, oncologists, palliative care and intensive care physicians. If the legislation is passed, it should protect doctors’ rights whether they choose to participate or not.
Selina Hunt, Head of Practice – Legal, Avant Law, QLD
Queensland’s Office of the Health Ombudsman (OHO) was established to improve the management of healthcare complaints in Queensland. However, in our experience, the system has led to some duplication and longer timeframes.
A Queensland Parliamentary committee examined the operation of the OHO in an inquiry last year. We made a submission and gave evidence to the inquiry. We recommended the adoption of a joint consultation process for health service complaints between AHPRA and OHO and integration of their processes to improve efficiency and timeliness of complaints handling, for early clinical input into complaints to ensure matters can be dismissed at an early stage, where appropriate.
The committee released a report last year containing recommendations which reflected, to a large extent, the issues we had raised.
Alison Fitzgerald, Head of Medical Defence Services, TAS & SA
Amendments to the Mental Health Act 2013 will provide clarity around the involuntary assessment and treatment of people with mental illness in Tasmania.
The Mental Health Amendment Act 2016 streamlines the process doctors must follow when making an assessment order. Currently, doctors must possess an application before an assessment order can be made, which can lead to delays in the assessment of critically unwell patients. The Act addresses this issue by allowing doctors to make an assessment order without an application. The amendments also remove some of the authorisation requirements in relation to treatment in urgent circumstances and require the mental health tribunal to review a treatment order within 60 and 180 days after it’s made. Treatment orders were previously reviewed within 30 and 90 days. But feedback suggested there was often little change in the patient’s condition or treatment needs between an order being made and the 30-day review. Feedback also suggested that the reviews are resource intensive and the time required from clinicians to prepare and attend hearings can unreasonably impact on the time available to provide adequate patient care.
The Act is expected to be introduced soon and should simplify the authorisation process for doctors, particularly those in remote areas.
New South Wales
Stephanie Penney, Practice Manager, Claims, NSW
New laws, which came into force in March 2017, impact medical practitioners performing cosmetic surgery in NSW. Any facility where cosmetic surgery is done is now subject to the same licensing rules as other private health facilities.
The regulations were tightened up to protect patient safety and mean certain cosmetic surgery – which previously may have been performed in unlicensed ‘day surgeries’ – can now only be performed in licensed cosmetic surgery-class private health facilities.
Facilities must now comply with general licensing standards for all private health facilities and anaesthetic standards in accordance with Australian and New Zealand College of Anaesthetists’ recommendations for administration, monitoring, recovery and staffing.
Members need to ensure that facilities where cosmetic surgery is undertaken are licensed under the Private Health Facilities Act 2007 (NSW) and Private Health Facilities Regulation 2010 (NSW).
Cosmetic surgeons should also update their policy and procedures, patient information brochures and advertising material to reflect the changes in their practice.
Australian Capital Territory
Harry McCay, Senior Solicitor, Avant Law, ACT
Being based in Canberra and having a strong relationship with organisations such as the AMA ACT, Avant has a good understanding of issues affecting ACT doctors. Recently, we have noticed an increase in patient suicides in the ACT, resulting in more doctors requiring our support in coronial investigations. There were 44 active coronial claims for Avant members between November 2016 and January 2017 in the ACT.
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