National Health Law Bulletin – December 2022

16 December 2022

We are delighted to welcome you to the HWL Ebsworth Health Law Bulletin.

The health law practice of HWL Ebsworth is one of the premier legal service providers to the Australian health industry, dedicated to assisting clients with all aspects of their legal needs. Within the national practice group we have a team of partners and lawyers who have market-leading expertise in all aspects of health law and policy including assisting health practitioners and public and private health facilities in civil claims, disciplinary proceedings and coronial inquests and providing advice on regulatory and compliance issues such as clinical governance, privacy, Medicare and ethics. Our team also has extensive experience advising on clinical protocols, medical practice management and industrial relations as well as providing corporate and commercial advice to health industry participants.

As part of our focus on the health industry, our bulletin addresses a range of topics designed to provide you with an insight into legal and other developments across the nation.

Is immediate action against a practitioner in the public interest?

In the recent case of Aly v Medical Board of Australia (Review and Regulation) [2022] VCAT 1096 (27 September 2022), the Victorian Civil and Administrative Tribunal discussed a number of relevant factors for regulatory Boards to consider when determining whether to take immediate action against a health practitioner.

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The obligation to destroy or deidentify patient data, and mitigating the risk of privacy breaches

Healthcare service providers such as medical centres and hospitals are required by law to store personal information about patients under both state-based and federal privacy legislation. However, following the recent and highly publicised Optus and Medibank data breaches, many patients have become more concerned with the ways in which patient data is being stored and how their data may be vulnerable to unauthorised access including through cybersecurity attacks.

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Legislative Update – Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022

The Health Practitioner Regulation National Law and Other Legislation Amendment Bill 2022 (Qld) was passed with amendment on 13 October 2022.

The Bill amends the Health Ombudsman Act 2013 (Qld) and the Health Practitioner Regulation National Law Act 2009 (Qld) across a number of areas. We highlight some of the key changes.

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When in doubt – call it out

Now more than ever, we are encouraged to ensure there are clear lines of boundary between personal and professional lives. But what happens when these lines become blurred and conduct in one’s personal life impacts professional integrity? And further, what obligations are there for disclosure to the Board for health practitioners?

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Accessing records of a deceased patient in New South Wales

It is not uncommon for healthcare providers to be approached to provide the medical records of a deceased patient. The request usually comes from a lawyer accompanied with an authority purporting to be from a family member. Issues arise as to privacy provisions.

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Colagrande v Kim [2022] FCA 409 – It could pay to monitor online feedback and reviews

In the recent case of Colagrande v Kim, Dr Cesidio Colagrande (a cosmetic doctor practising on the Gold Coast) was awarded significant damages for defamation and an order restraining the respondents from publishing the defamatory matter or any matter or imputations to the same effect as the defamatory matter.

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Important changes to the Health Insurance Act 1973 (Cth) for non-practitioners and corporate entities being reviewed by the Professional Services Review

On 5 December 2022, the Health Legislation Amendment (Medicare Compliance and other Measures) Bill 2022 was assented to by the Governor-General. With the medical profession currently under close scrutiny for its Medicare servicing, the amendments to the Health Insurance Act 1973 (Cth) are timely.

One of the primary goals of these amendments is to strengthen general compliance with the requirements of Medicare servicing by proposing to amend Part VAA of the Act. Part VAA governs the current process established to review practitioners’ billing practices by way of the Professional Services Review.

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