Victorian Government announces $20 million Health Service Violence Prevention Fund

On 5 May 2015, the Andrews Labor Government announced in its 2015-16 Budget $20 million to help make public hospitals and mental health services safer for healthcare workers.

The Fund will address concerns raised in the Auditor-General’s Report into Occupational Violence Against Healthcare Workers.  The recommendations in the report align with the Government’s commitment to establish a simplified reporting mechanism and compel health service boards to publicly report violent incidents.

The Fund could also be used to modify rooms to have two points of entry and exit or to install security cameras.

To view the media release, click here.

Informed Consent – Recent Decision Favours Doctor

A recent Supreme Court decision confirmed that for a doctor to obtain informed consent from their patient, they must provide the patient with information about the known risks and side effects of the procedure, including those which may not be likely, but are materially important to the patient, prior to accepting the patients consent (ie. which may affect the patient’s decision to undergo the procedure or not). 

Providing this information enables the patient to decide whether the weight of the risks and side effects outweighs the benefits of the proposed procedure.

However, a doctor is not obliged to refuse the surgery if their personal view or a reasonable medical view was that the procedure is in some way unwarranted.  This is important where there may be a lack of severity of symptoms or where the procedure is cosmetic in nature. 

The information given to obtain informed consent can be provided either orally, in writing, or by a combination of both. 

BACKGROUND

In April 2015, the Supreme Court of New South Wales handed down its decision in the matter of Morocz v Marshman. Ms Morocz claimed that Dr Marshman had been medically negligent by failing to warn her of the potential side effects and risks of the surgery and therefore failed to obtain informed consent from her.

The surgery was a bilateral endoscopic thoracic sympathectomy where Dr Marshman cut the nerves along Ms Morocz’s T2 rib to sever the nerve connection which causes hyperhidrosis.

Hyperhidrosis is a medical condition that can cause excessive sweating on the palms.

The Court discussed the liability (if any) of Dr Marshman and discussed what is required in relation to the duty to warn. Further, they outlined how informed consent is obtained.

THE MEDICAL CONSULTATION[1]

On 3 August 2006 Ms Morocz and Dr Marshman consulted about the hyperhidrosis. They discussed the history of Ms Morocz’s hyperhidrosis, how it affected her and the fact her mother had also had the condition.

Ms Morocz did not let Dr Marshman examine her hands to assess the sweating.

They discussed prior treatment Ms Morocz had undertaken, which included an alcohol rub that had been largely ineffective and left her with very dry hands.

They discussed that Botox can be used and Dr Marshman pointed out that it can be painful and expensive and must be repeated.

Ms Morocz informed Dr Marshman she had read quite a lot about the surgery on the internet.

Dr Marshman informed Ms Morocz of an overview of the procedure, the success rate, the associated risks, the potential side effects and further provided her with a brochure from the Society of Thoracic Surgeons which set out the procedure and its risks and side effects in greater detail.

POST-OPERATIVE

Ms Morocz was spaced out and dizzy and not fully awake. She had bad nausea and vomiting and felt unwell. She became aware of breathing that was not normal and numbness of her upper chest, neck, face and arms. She had increasing pain. Her hands were very dry and very warm. She developed compensatory sweating. She had a slow heart rate. She developed a pneumothorax. She felt it difficult to adjust to different temperatures.

THE DUTY TO WARN

The Court discussed a doctor’s duty to warn and Montgomery v Lanarkshire Health Board[2]prior common law conclusions about how this should occur.

[70] “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.  The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.  The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significant to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significant to it.”

INFORMED CONSENT

After a thorough discussion of the relevant authorities[3] on informed consent and the duty to warn, the Court determined that a doctor must identify known risks and side effects and inform the patient of these.  The patient is then able to give fully informed consent.  Whether or not the doctor has fulfilled this duty to warn a patient of the risks or side effects is a determination to be made by the Court.[4]

FINDINGS

The Court looked at each allegation Ms Morocz made in relation to what she believed she had not been informed of and found that:

Dr Marshman was obliged to notify Ms Morocz of the known risks and side effects of the surgery.  The Court found that as to the known risks and side effects (namely, return of the hyperhidrosis, compensatory hyperhidrosis and intercostal neuralgia[5]) Ms Morocz was properly and adequately warned of the potential consequences of having the surgery.

Dr Marshman was not obliged to refer Ms Morocz to risks or side effects that were not known risks or side effects of the hyperhidrosis surgery, including those risks or side effects which did not have clinical implications for her. These included decreased innervation of the heart, bradycardia, intolerance to exercise, impairment of emotional responses, debilitating headaches, anxiety and depression, undergoing the procedure at all and the fact that Sweden had banned the procedure in 2003.[6]

The Court determined that Dr Marshman was entitled to take into account Ms Morocz’s presentation at the consultation, including the fact that she had obviously completed significant research prior to her visit.

The Court also found that a doctor was not obliged to inform a patient of rates of complications, medical literature discussions (including that the procedure had been banned in another country) and possible physical or physiological changes.

CONCLUSION

The Court found that Dr Marshman had not failed in his duty to warn Ms Morocz of the risks or side effects of the procedure.  Further the Court stated that they were not satisfied that any breach had occurred and stated that even if Dr Marshman had warned his patient of these risks Ms Morocz raised in her pleadings, the Court found that she would have gone ahead with the surgery regardless.[7] 

[1] Morocz v Marshman [2015] NSWSC 325 at [3]-[7]

[2][2015] UKSC 11 at [87]

[3]Rogers v Whitaker (1992) 175 CLR 479, 489-490; Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [81]-[87]; Rosenberg v Percival (2001) 205 CLR 434 at [60]-[61]; Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 at 876; Gover v South Australia (1985) 39 SASR 543, 551

[4]Morocz v Marshman [2015] NSWSC 325 at [74]

[5] At [84]-89; [90]-[96]; [198]-[201]

[6] At [97]-[103]; [104]-118]; [119]-[126]; [127]-[133]; [134]-[139]; [140]-[144]; [145]-[172]; [202]-[204]

[7] At [214]

QCAT finds unsatisfactory professional conduct for post-operative care

On 27 March 2015, QCAT found that a doctor’s failures in relation to post-operative care amounted to unsatisfactory professional conduct.

The doctor performed a hip resurfacing procedure on the patient, followed by a revision procedure.  The patient subsequently developed a deep wound infection involving staphylococcus epidermidis.

QCAT found that the doctor failed to diagnose the infection in circumstances where the patient presented with pain and discharge following the revision procedure, failed to order blood tests before prescribing antibiotics and failed to treat the site with a wound washout.

QCAT is set to take submissions in respect of costs and sanctions.

To view the decision, click here.

Federal Court finds AMI engaged in unconscionable conduct

On 22 April 2015, the Federal Court found that AMI engaged in unconscionable conduct by promoting and supplying medication and services to men suffering sexual dysfunction and that the long-term agreements entered contained unfair terms relating to terminating the contract.

The Court found that there was a lack of scientific evidence supporting AMI’s claims in relation to its medication and that AMI told customers that – if left untreated – there could be further health issues associated with their sexual dysfunction.

The Court ordered AMI to pay compensation to a number of patients and imposed conditions on AMI when promoting and supplying its medication, namely to:

  • conduct face-to-face consultations with doctors;
  • provide written agreements to patients that include a 5 day cooling off period;
  • inform patients that doctors are only considering whether to prescribe medication, not providing general medical advice; and
  • limit its long-term agreement to 2 months.

The Court referred the matter to the relevant medical disciplinary boards for consideration as to inappropriate conduct.

To review the decision, click here.

Doctor denied natural justice by Central Queensland Hospital and Health Service

Dr Vega Vega was suspended by the Central Queensland Hospital and Health Service for removing the incorrect kidney from a patient.

After investigating the incident, the Medical Board suspended Dr Vega Vega and imposed conditions on his registration.  Dr Vega Vega successfully appealed the Medical Board’s decision at QCAT.

Following the investigation, reports were generated and provided to the Director-General of Health (QLD).

Dr Vega Vega applied to the Supreme Court to have two reports quashed and set aside or for a declaration to be made that the reports themselves constituted a denial of natural justice and were therefore invalid.

Dr Vega Vega had made several requests to see the contents of the reports as well as the documents and information relied on in reaching their conclusions.  On this basis, he sought to reach an agreement that he be provided access to the reports prior to them being provided to the Director-General of Health, to allow him to be properly informed of the allegations.

The Court determined that there had been a denial of natural justice on the ground that Dr Vega Vega was denied access to the information and documents relied on by the investigators and clinical reviewers in their reports.

To review the decision, click here.

News

Mobile health and fitness apps raise privacy concerns

As mobile health and fitness apps become increasing popular, consumers are being warned about the risks of misuse of their personal health information.

Privacy experts have raised concerns that information collected via health and fitness apps, which includes sensitive health information such as diet, exercise levels and heart-rate, can be on-sold to third party data companies without the consumer’s consent.  Data companies may then use this information to develop profiles on consumers.

Further, as many of the apps are owned and designed overseas, they may not be covered by the Privacy Act 1998 (Cth).

Consumers are being strongly urged to read privacy policies carefully to understand exactly how their data may be used before handing over sensitive information through health and fitness apps.

Please contact us if you require assistance with your privacy policy or understanding your rights and obligations under privacy legislation.

To view the ABC article on health and fitness apps, click here.

Legislation

New mental health legislation requires an annual mental health services report to go before Parliament

The Mental Health Amendment Act 2015 (Vic) commenced on 12 May 2015.

It made a range of amendments to the Mental Health Act 2014 (Vic), the most significant of which is the introduction of the annual mental health services report to be prepared by the Secretary to the Department of Health and Human Services.  The report will review the provision of public mental health services during the previous financial year, including service usage data and results from consumer and carer surveys.  The report will be submitted to both houses of Parliament.

To view the Act, click here.

Articles

New Faces for a New Era in Primary health Care

Michael Gorton published in Networking Health Victoria. Click here to view article.

Substitute decision-making for participation in medical research

Emma Turner published in Australian Health Law Bulletin May Edition. Click here to view article.

IMG fails in challenge to assessment system

Click here to view article.