Federal Government re-examines GP co-payment 

On 3 March 2015, the Federal Government announced that it was no longer proceeding with its plan to implement a co-payment fee for visits to a GP, pathologist or diagnostic imaging service.  The decision was arrived at after consultation with the public and medical professionals. 

As an alternative, the Government has introduced an optional co-payment with additional protections. Under the new proposal, Medicare rebates paid to doctors for certain consultations will be reduced by $5.  Doctors will have the option to recoup the reduction in the Medicare rebate by charging non-concessional patients an additional fee of $5 or less with each visit. 

Subject to parliamentary approval, the changes will take effect from 1 July 2015. 

Cases 

White v Johnston [2015] NSWCA 18 

In this case, a patient, Ms Ruth Johnston, brought a claim for compensation against her dentist, Ms Jasmin White, alleging assault and battery due to unnecessary treatment performed between June and December 2009.  Ms Johnson alleged the treatment was fraudulently provided purely to extract money. 

The trial judge found in favour of Ms Johnston, agreeing that Ms White had performed unnecessary procedures in order to extract money from her patient, and awarded compensatory damages in addition to $150,000 in exemplary damages. Ms White appealed on a number of grounds and the New South Wales Court of Appeal allowed the appeal. 

The Court of Appeal held that, where a practitioner is found to have been solely motivated by an unrevealed non-therapeutic purpose in performing a procedure, the patient’s consent will be invalid and the treatment will amount to assault and battery.  However, the patient bears the onus of proving a procedure had no therapeutic purpose or that consent was fraudulently obtained.  In the circumstances, there was no evidence to support a finding that the dental treatment was carried out for no therapeutic purpose.  The Court of Appeal also ruled that the exemplary damages were excessive. 

To view the judgment, click here

Court of Appeal sets aside finding of improper conduct 

The Western Australian Court of Appeal has set aside a finding of the State Administrative Tribunal that Dr Leila Dekker was guilty of improper conduct for failing to stop to assist passengers in a vehicle with which her car had collided, while being aware that they may have sustained injuries.  Dr Dekker had instead driven to a police station where she reported the accident.  The Court of Appeal set aside the Tribunal’s decision and dismissed the Medical Board of Western Australia’s application due to a lack of evidence, including that there was no specific professional duty as formulated. 

To view the judgment, click here

News 

ACCC integrates health and medical sectors into compliance and enforcement policy 

On 19 February 2015, the Australian Competition and Consumer Commission launched its Compliance and Enforcement Policy 2015.  Notably, the ACCC announced that among its new compliance and enforcement priorities will be competition and consumer issues in the health and medical sectors.  ACCC Chairman Rod Sims said the ACCC work in this area would “increase awareness within the medical profession and the broader health industry about both rights and obligations under the law”. 

To view the launch speech and policy, click here

Articles 

Records are your best defence  

Most doctors are likely to receive one complaint or claim during their professional life.  It is a ‘life event’, likely to be stressful and filled with uncertainty.  None of us like our professionalism questioned or suggestions that we may have done wrong. 

Upon receipt of a complaint or a claim, you will of course immediately notify your medical indemnity insurer. 

Your insurer is unlikely to say – “That’s terrible doctor.  Please come round and have a cup of tea and a biscuit so that we can discuss the matter with you.”  Your insurer is more likely to say – “That’s terrible doctor.  Can you please send us a copy of your medical records and file in relation to this claim, and then we will have you around for a cup of tea and a biscuit to discuss the matter with you.” 

Your insurer will want to know what documentary evidence exists in relation to the claim.  In many cases, your medical and other records will be your best defence. 

To read the full article, click here

Rohan Harris quoted in SmartCompany on Nurofen packaging claims 

"ACCC gives Reckitt Benckiser a legal headache over “identical” Nurofen products marketed at specific pains" 

The consumer watchdog has launched legal action against pharmaceutical giant Reckitt Benckiser Australia over its Nurofen Specific Pain Products, alleging the packaging of its four “identical” pain products is misleading. 

Rohan Harris, principal at Russell Kennedy Lawyers, told SmartCompany any company that makes a claim on its packaging needs to be able to substantiate it, even if it is comparing the products against other products in its own portfolio. 

“Generally speaking, if you are going to make claim that your product is more superior and specialised, you have to be able to substantiate it,” says Harris. 

To read the full article, click here.