National Health Law Bulletin – November 2019

06 November 2019

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 with 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.

Royal Commissions – Not a fad, but a path to real change

The recent ramping up of the number of Royal Commissions in Australia is striking. This is not a fad. The health industry must prepare for the coming real change by monitoring the current Commissions closely and taking proactive steps now.

It took about five months for former Commissioner of the Banking Royal Commission, and former High Court Justice, Kenneth Hayne, to make his first public remarks since delivering his final report in February.

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Pathology collection centres: Responding to DoH “please explain” letters about rent

The Australian Department of Health has sent “please explain” letters to parties to hundreds of leases for pathology approved collection centres, as part of its new commitment to strengthening compliance with the “prohibited practices regime” under the Health Insurance Act 1973 (Cth) (Act).

Although enacted in 2008, until recently, the prohibited practices regime has been largely unenforced and is thought to have been widely unfollowed. Many medical centres, hospitals and dental clinics have routinely charged rents substantially above market rates to pathology collection centres co-located on their premises.

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Alternative Dispute Resolution in medical negligence cases

Claims for medical negligence have risen dramatically in Australia over the last 30 years. The facts and the medicine can be of varying complexity. Matters proceeding to hearing take days and usually weeks. Consequently, Australian courts have been keen to refer these matters to alternative dispute resolution to take the pressure off the demands of court lists.

In New South Wales virtually every medical negligence claim is referred to mediation, by consent or court order.

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The risks of technology-based medical practice

The internet is significantly changing the delivery of health care in Australia. Practitioners can now Facetime patients, view patient data through secure online services and conduct various health assessments virtually. While the benefits of virtual care are obvious (convenience, accessibility, on-demand services and reduced wait-times), it is not without legal risk. In this article we highlight some issues practitioners should consider before deciding to engage in technology-based practice.

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Consultation via telephone

A medical practitioner was recently found guilty of professional misconduct in relation to his practice of consulting  patients and  prescribing medications via telephone.

In Health Care Complaints Commission v Goyer, the medical practitioner operated a business under the name of Medical Weight Loss Institute (MWI). MWI provided its service using a model of ‘telemedicine’. Patients were not seen in person, but conferred with staff via telephone or ‘online’.

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Medicare: What is the shared debt recovery scheme?

Medicare routinely audits and reviews the Medicare billing of health practitioners. Where there has been non-compliance, Medicare requires repayment of benefits directly from the practitioner who holds the relevant provider number. In that regard, it does not matter if the practitioner delegates out to his/her administrative staff or has a service company/corporate entity submit the claims to Medicare, the practitioner who holds the relevant provider number is liable for all incorrectly rendered claims.

From 1 July 2019 practitioners will be able to ask Medicare for a shared debt determination when they are first contacted by Medicare.

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ACCC takes HealthEngine to Court

Most Australians are familiar with HealthEngine, the online platform which allows patients to make a booking with a health practitioner or practice and leave reviews following their consultation.

But what actually happens to the personal information which is submitted to HealthEngine? And how accurate are the reviews which are submitted by patients? Following initial concerns raised in 2018 relating to HealthEngine’s unauthorised disclosure of patient’s personal information to third parties HealthEngine now finds itself the subject of legal proceedings in the Federal Court of Australia.

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Real-time prescribing and new offences to start in Queensland with the proclamation of the new Medicines and Poisons Act 2019

The Medicines and Poisons Bill 2019 and related draft regulations were introduced to the Legislative Assembly on 14 May 2019. The Medicines and Poisons Act 2019 (Act) together with the Therapeutic Goods Act 2019 were passed by the Queensland Parliament on 17 September 2019 and will start on proclamation.

The purpose of the Act is to establish a new regulatory framework to modernise and streamline the regulation of medicines and poisons in Queensland.

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Agreement brings renewed focus on the importance of AHPRA’s National Register

Aged care employers and their employees should be aware of the new Memorandum of Understanding signed by the Australian Health Practitioner Regulation Agency (AHPRA) and the Aged Care Quality and Safety Commission (the Commission) in July of this year.

AHPRA recently published a press release in August and announced the new agreement formalising the collaborative working relationship that exists between AHPRA and the Commission. The agreement will ensure a continued sharing of information between the two agencies where there may be concerns in aged care, and help each party to more effectively fulfill their statutory mandates

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Counting steps or saving lives: Is your software a medical device?

With the increased prevalence of software aimed at improving our day to day health, diagnosing illnesses and treating medical conditions, there has been a recent focus on developing regulations to address new types of medical devices.

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Ten top tips for buying a medical practice

Purchasing a medical practice is a significant financial and professional decision. It is vital you seek appropriate legal and accounting advice before you sign any sale documents. This article summarises ten top things to consider before purchasing a medical practice.

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