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.
HWLE’s health lawyers assist pro bono – Kathleen Folbigg pardoned
HWLE’s Sydney Health team were privileged to act pro bono for the Australian Academy Science (the Academy) at the second inquiry in the convictions of Kathleen Folbigg before the Honourable Justice Thomas Bathurst AC KC.
This matter demonstrates the interaction between science, medicine and the law and the critical role that expert evidence plays. The role of the Academy as a scientific advisor to the Inquiry was unique within the Australian judicial environment but raises the question of the need for such involvement when complex medical and scientific evidence is critical.
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Australia’s booming cosmetic surgery industry faces tougher regulation
Australia has surpassed the United States as the most cosmetic procedures per capita. With a dramatically growing industry comes opportunity but also the need to regulate potential risks and loopholes.
From 1 July 2023, the Australian Health Practitioner Regulation Agency will welcome new Guidelines for registered medical practitioners who perform cosmetic surgery and procedures following stronger guidance and higher standards that will apply to registered medical practitioners who perform cosmetic surgery and non-surgical cosmetic procedures.
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Performance of cosmetic procedures on children – a review of the Chapter 5A of the Public Health Act 2005 (Qld)
The work and cause championed by Tarryn Brumfitt, 2023 Australian of the Year, to promote self-acceptance and a positive body image in adults and children, along with the Medical Board of Australia’s revised Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures (Guidelines) which come onto effect on 1 July 2023, provide an opportunity to review the legislation regarding the performance of cosmetic procedures on children.
The Guidelines which will be regarded when considering a doctor’s conduct now require a doctor to know and comply with relevant legislation of the jurisdiction in which they practise, in relation to restrictions on cosmetic procedures for patients under the age of 18.
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Online Reviews and Defamation of Medical Practitioners
Dr Korana Musicki, specialist vascular and endovascular surgeon, obtained default judgment in her favour arising from a Google review which the Court found to be false and defamatory. The review was published by a former medical student, Dr Erik de Tonnerre, under a pseudonym.
This case provides some reassurance for any defamed practitioners and suggests that it is prudent for doctors to monitor reviews about them which are published online, especially reviews that have been published anonymously or under a pseudonym.
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Medical Board of Australia v Conron (Review and Regulation) [2023] VCAT 15 (6 January 2023)
In the case of Medical Board of Australia v Conron (Review and Regulation) [2023] VCAT 15 (6 January 2023), the Victorian Civil and Administrative Tribunal discussed a range of issues relating to a general practitioner’s self-treatment, the treatment of a family member, substandard treatment and inadequate record taking.
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An obligation too onerous – Court of Appeal overturns trial judge’s findings on a GP’s duty to chase up referring doctors
General Practitioners can breathe a sigh of relief that their duty does not extend so far as to advocate on behalf of their patients to the referring specialist or require them to achieve timely review by another medical practitioner. In a role that already requires extremely acute skills to examine, diagnose, treat and refer patients during very short consultations, the additional duty held in the trial, but overturned on appeal, would have further strained the resources of General Practitioners.
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Independent Review of Medicare Integrity and Compliance
On 4 April 2023, the final report of the Independent Review of Medicare Integrity and Compliance (Review) was published containing a series of findings and recommendations regarding the vitality of the Medicare system. The Review was commissioned by Federal Health and Aged Care Minister, Mark Butler, following media reports of widespread ‘rorting’ and non-compliance within the Medicare system which claimed to be costing taxpayers up to $8 billion per year.
The Review undertaken by Dr Pradeep Phillip involved a high-level assessment of the integrity of the Medicare system, specifically an assessment of the potential value of fraudulent, non-compliant or over servicing billings, and the overall vulnerabilities of the payment system.
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