National Health Law Bulletin – June 2024

11 June 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.

Call to all practitioners who perform non-surgical cosmetic procedures

On 7 March 2024, the Therapeutic Goods Administration (TGA) published revised guidance on the advertising of health services which involve cosmetic injectables to ensure advertising rules are applied consistently across all industries that deal with therapeutic goods.

Historically, the TGA has allowed indirect references to prescription-only medicines to be referenced in advertisements related to cosmetic health services. This was allowed only in the context of promoting the service and only by using generic non-product specific terms such as ‘dermal filler’, ‘Botox’, and ‘wrinkle reducing injections.’ This is no longer the case.

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Carter (a pseudonym) v Australian Air League Incorporated & Anor [2024] VSC 95

In Carter (a pseudonym) v Australian Air League Incorporated & Anor [2024] VSC 95, the Victorian Supreme court discussed a range of principles relevant to the breadth and contents of issuing subpoenas for records held by Medicare.

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The symbiotic relationship between the Medical Council of NSW and the HCCC: Working harmoniously to protect the health and safety of the public in NSW

On 27 October 2021, the Medical Council suspended the medical registration of Dr Trinh pursuant to section 150 of the Health Practitioner Regulation National Law 2009 (NSW) (the National Law) following the receipt of two complaints that raised concerns about Dr Trinh’s performance and conduct as a medical practitioner.

On 23 March 2022, the Medical Council affirmed its previous decision to suspend Dr Trinh’s medical registration pursuant to section 150A of the National Law.

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Refusal of lifesaving treatment on religious grounds

The issue of consent to lifesaving treatment is an ongoing concern for medical professionals in circumstances where patients may refuse such treatment based on their own religious beliefs. This has been seen over time both in Australia and overseas, including blood transfusions for patients who are Jehovah’s Witnesses.1 The deliberation of these issues involves the consideration of whether the patient has Gillick competence, being the capacity to make decisions about their own medical treatment. The recent decision of H v AC [2024] NSWSC 40 revisits this issue and highlights the tension which can occur between lifesaving medical treatment and some religious beliefs.

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The importance of maintaining good medical records

Kennedy v Malhotra [2024] NSWSC 576 highlights the importance of maintaining good medical records.

The plaintiff, aged 42, suffered from cervical cancer and had a limited life expectancy. The hearing was expedited, and orders were made for the parties to exchange evidentiary statements before the hearing which was heard over 5 days in April 2024. His Honour Justice Cavanagh delivered judgment on 15 May 2024.

Essentially the plaintiff alleged that her general practitioner did not advise or inform her of the necessity of undertaking preventative screening in the nature of Pap smears or cervical screening tests (CST).

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1See for example E & F (Minors: Blood Transfusion) [2021] EWCA Civ 1888

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