KSL Medico-Legal Monitor Winter 2008

In the news…..

NSW Health wraps up inquiry into state’s hospitals

The NSW government’s Special Commission of Inquiry into systemic problems in the state’s hospital system (“the Garling inquiry”) has completed its hearings around the state.  

The Inquiry spent a day hearing from patients, their relatives and health professionals in Newcastle at the Royal Newcastle Centre on 12 May 2008. Amongst those giving evidence was a client of King Street Lawyers: the mother of a 33 year old patient who died of complications of ulcerative colitis. The matter is also being investigated by the NSW Health Care Complaints Commission.

The time for release of the report of the Commission of Inquiry has been extended from July to 28 November 2008.

Hospitals to be required to publish infection report cards

At the recent meeting of Australian Health Ministers (‘AHMAC’) on 22 July 2008, there was general support for the introduction of a uniform national scheme which would allow the publication of hospital infection rates.

The development followed closely upon the release of a report by the Australian Commission for Safety and Quality in Health Care which found estimates of 200,000 people each year infected in the context of health care each year: see

The  Report found many healthcare related infections occur as a result of widespread failure of health care professionals to wash their hands between patients.

Australian Health Ministers introduce Charter of Patient Rights

The 22 July AHMAC meeting also adopted a recommendation for the introduction of a single Charter of Patient Rights applicable across all states and territories. The Charter would be identified as a clear statement of a minimum set of standards of rights, expectations and entitlements designed to facilitate a more cohesive and unified approach to achieving health rights for patients and consumers: see Communique dated 22 July 2008

Medical Board gains tougher powers to regulate doctors

The NSW government has successfully passed new legislation, the Medical Practice Amendment Bill 2008, which clarifies the lawby giving the NSW Medical Board to suspend from practice or impose conditions upon the registration of a doctor where such conditions are justified in the public interest. The Board has power to take urgent action to deal with doctors who present an immediate risk to the public and also to ensure that multiple complaints and previous findings about a doctor can be taken into account by the Medical Tribunal and other disciplinary bodies.

For a detailed commentary on the new legislation and how the new legislation might be utilised in a particular example (the case of Dr Graeme Reeves) click here.

Victorian Law Reform Commission releases Final Report on abortion law reform reference

In the last edition of Medico-Legal Monitor, we reported on the review being undertaken by the Victorian Law Reform Commission concerning abortion law reform. The Victorian government released the Commission’s report on 29 May 2008. The Commission found the existing legal principles governing abortion practices in Victoria to be unclear and has put forward three options for the decriminalising of abortion in that state. Click here for a copy of the Commission’s final report.

Prochoice activists are advocating the adoption of Option 3 which removes all references to abortion and child destruction from the Crimes Act. It is argued that this is the only model which would give women a right to chose and allow abortion to be regulated as other medical procedures.

Click here to read an article by Judith Troeth, a Victorian state MP, on the legislative options open to the Victorian government.

Breaking News: Legislation to remove abortion from the Crimes Act was introduced on 19 August 2008 in the Victorian State Parliament. The legislation adopts Option 2 of the Commissions report. Under the Abortion Law Reform Bill 2008, abortions will be regulated like any other medical procedure up to 24 weeks gestation. An abortion at 24 + weeks abortion can still be lawful if a doctor has determined that to proceed is necessary to prevent risk of harm to the woman if the pregnancy continued.

Click here to read a media release about the new legislation.

Advanced notice of CUEHL debate on ‘no fault’ system of medical liability: 8 September 2008, Royal Newcastle Centre

The Clinical Unit in Ethics and Health Law, CUEHL, operates within the School of Medicine and Public Health at the University of Newcastle and is a coalition of interested professionals from multiple disciplines, including law, medicine, nursing, allied health, philosophy and sociology.  CUEHL, which also provides a forum for presentation and discussion of research in ethics and law, is hosting the inaugural Memorial Debate in memory of the late John McPhee.

John McPhee was a long-time member of CUEHL, and a highly-regarded member of the broader ethics and law community in Australia, who died in 2007.  He taught for many years at the University of Newcastle and collaborated on a number of books about health law.

The debate will focus on the present adversarial system of medical liability and feature David Hirsch barrister and Professor Jim Davis of the Australian National University both of whom have written widely on the subject.

To find out more about the inaugural Memorial John McPhee debate, click here.

Case reports

Case Report: Victorian Court of Appeal determines psychiatric injury case: Kirkland-Veenstra v Stuart I[2008} VSCA 32

The widow of a patient who suicided in Victoria in August 1999 has successfully sued two police officers and the state of Victoria for failing to detain her husband pursuant to statutory powers contained in the Victorian  Mental Health Act 1986 (section 10). The only issue for the determination of the appellate court was whether a duty at common law was owed to the widow. The majority of the court found that Mrs Veenstra should have been in the contemplation of the officers as someone who would be “closely and directly affected” by a failure to prevent the deceased from suffering harm.

Click here to read the full judgement.

Case Report: King Street Lawyers settle claim for breach of duty arising from supervision of community treatment order (‘CTO’)

Medical lawyers from King Street Lawyers recently settled a common law negligence claim brought by the de facto spouse of a patient with a lengthy history of mental illness who had been placed on a community treatment order following his discharge from a psychiatric facility in the Newcastle area.

The matter had earlier been the subject of an inquest in which the care of the mental health workers and the ambulance officers attending the deceased’s home after receipt of a ‘OOO’ call were  questioned.

Click here to read the full decision of former NSW State Coroner John Abernethy in the inquest concerning the death of the late Keith Chenery dated 14 July 2007.

Case Report: Supreme Court of the ACT determines IVF twin case: G and M v Armellin [2008] ACTSC

A lesbian couple who sued Canberra obstetrician, Dr Sydney Armellin, in connection with an allegedly negligent IVF procedure had their case recently dismissed by Justice Annabelle Bennett in the A.C.T Supreme Court. The case arose from the implantation of two embryos: the plaintiffs asserted that they had contracted to have just one embryo implanted. The couple sought over $398,000 in damages to compensate for the cost of raising the additional twin.

Her Honour found that Dr Armellin had not breached his duty of care. There were significant competing factual claims during the trial about what was in fact communicated. Ultimately it was determined that the plaintiffs  had a responsibility to ensure that they properly communicated their wishes to the defendant doctor and had not so communicated.

Click here to read the full judgement.

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