National Health Law Bulletin – January 2024

31 January 2024

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.

Medical Examinations in New South Wales

In each state and territory of Australia there are court rules which govern the ability of a defendant to arrange a medical examination of a plaintiff in a medical negligence case. In New South Wales the applicable law is Rule 23.4 of the Uniform Civil Procedure Rules 2005, which provides:

  1. ‘the court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place; and
  2. if the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination.’

Click here to read more.

Waiver of privilege of expert reports

Foxall v Carter (No. 2) [2023] NSWSC 872 was an interlocutory application dealing with a claim for legal professional privilege for expert reports and any waiver of that privilege.

The plaintiff, who was nearly nine years old at the time, participated in four horse riding lessons arranged by the defendant in Mudgee, New South Wales. The plaintiff suffered catastrophic injuries after falling from a horse after it bolted during the fourth lesson.

The parties commissioned various reports in relation to liability in preparation of the case for hearing. In doing so, the defendant qualified Dr McLean, an equine expert, who prepared several reports between 19 May 2018 and 25 October 2022. Only the first report dated 19 May 2018 was served on the plaintiff.

Dr McLean produced documents in answer to a subpoena filed by the plaintiff on a non privileged basis. The defendant then claimed privilege on all seven reports including the first report that had been served on her behalf.

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Does artificial intelligence have a place in Australian Healthcare?

In May 2023, Perth’s South Metropolitan Health Service learned that a doctor had used artificial intelligence (AI) tools to generate a patient discharge summary. The Chief Executive of Perth’s South Metropolitan Health Service wrote to all staff in the district, cautioning doctors not to input any patient details into AI technology to create medical notes. The Chief Executive emphasised that AI technology such as ChatGPT does not guarantee patient confidentiality and that we do not yet fully understand the security risk posed by inputting this information into public websites.

Click here to read more.

File Notes of expert opinions in Qld: Are they privileged? Case Review: Enkelmann & Ors v Stewart & Anor [2023] QCA 155

The position regarding disclosure of file notes taken during discussions with experts has been the subject of debate in Queensland. The Court of Appeal has now provided some clarity.

The Court of Appeal found that, while in this instance, the solicitors’ file notes containing the opinion of an expert were protected by legal professional privilege, subsequent conduct by the Appellants in failing to object to questions put to the expert during cross examination (or to otherwise assert privilege), impliedly waived this privilege.

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When to issue a death certificate or to refer a patient’s death to the NSW Coroner?

Doctors have a legal obligation not to issue a death certificate if the person’s death is a ‘reportable death’. But what is a reportable death?

A person’s death is a ‘reportable death’ if it is:

  • a violent or unnatural death;
  • a sudden death the cause of which is unknown;
  • the person died under suspicious or unusual circumstances;
  • the person had not been attended by a doctor during the period of 6 months immediately before the person’s death;
  • the person died in circumstances where the death was not the reasonably expected outcome of a health-related procedure; or
  • the person died while in or temporarily absent from a mental health facility.

Click here to read more.

An Employer/Medical Practice perspective on title protections: What are the obligations and pitfalls?

The Health Professional Regulation National Law 2009 (National Law) restricts the use of protected titles and makes it unlawful for someone to knowingly or recklessly, take or use a title in a way that would be reasonably expected to make another person believe they are registered in one of the health professions listed in the National Law, when they are not registered.1 It is also unlawful to use a specialist title when the person does not have specialist registration.2 Similarly it is unlawful to claim to be registered under the National Law when that is not the case.3

Click here to read more.

Yet another Medical Panels judgment: Vicinity Centres PM Pty Ltd v Arik

On 5 December 2023 the Victorian Court of Appeal delivered judgment in an appeal relating to the proper interpretation of the American Medical Association Guides to the Evaluation of Permanent Impairment Fourth Edition.4

The appeal was granted, which means that the Medical Panel and trained assessors alike can return to assessing impairment of the lower extremity using the range of motion method in the way they had previously done.

Click here to read more.

High stakes: Navigating medicinal cannabis in the workplace

Dealing with cannabis used to be simple for employers – if an employee tested positive then they could be disciplined or dismissed. It’s not that easy anymore!

Australia legalised the use of medicinal cannabis in 2016. Since then, we have seen an increasing number of employees being prescribed medicinal cannabis for chronic conditions, anxiety, back pain and managing the ongoing side effects of chemotherapy treatment. This has created an enormous challenge for many of our clients, especially in the resources industry, who now need to balance work health and safety obligations with anti-discrimination legislation.

Click here to read more.

1s113 Health Professional Regulation National Law 2009
2s115 Health Professional Regulation National Law 2009
3s116 Health Professional Regulation National Law 2009
4Vicinity Centres PM Pty Ltd v Arik & Ors [2023] VSCA 295

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