In this edition: Medical device cyber security warning, Milky v Medical Board of Australia, AMA Private Health Insurance Report Card 2019, AHPRA and National Boards release new social media guide and Physician-assisted suicide remains opposed by world doctors.

The latest insights from our Health Law team:

Medical device cyber security warning

Milky v Medical Board of Australia

AMA Private Health Insurance Report Card 2019

AHPRA and National Boards release new social media guide

Physician-assisted suicide remains opposed by world doctors

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Medical device cyber security warning

The Department of Health and Therapeutic Goods Administration (TGA) have issued warnings and advice to consumers who use medical devices which can connect to the internet. Such medical devices must be registered on the Australian Register of Therapeutic Goods.

Some medical devices can send information to other people. This could be via the internet, USB or Bluetooth, for example. This can enable manufacturers to update software on a device, but it may also expose a device to a risk of information leaking. Some medical devices which may have such connectivity include:

  1. Smartphone apps which record health information;

  2. Cardiac pacemakers which can be remotely controlled;

  3. Some hearing aids; and

  4. continuous positive airway pressure (CPAP) machines that treat sleep apnoea.

If there is a cyber security problem with a medical device, manufacturers are generally under an obligation to alert consumers of a privacy breach. Health services which provide devices should be prepared to answer questions about the cyber and other security measures on various medical devices so that they can assist device owners to protect their information.

The TGA has released a guidance for industry participants which sponsor or manufacture medical devices – this is available online. You can read the Department’s factsheet and recommendations for strengthening cyber security here.

Milky v Medical Board of Australia (Review and Regulation) [2019] VCAT 1780 (11 November 2019)

On 10 September 2019 Dr Milky’s registration was suspended by the Medical Board of Australia (Board) by way of immediate action under s 156(1)(a) and (e) of the Health Practitioner National Law (National Law). The Board held ‘reasonable belief that Dr Milky’s conduct posed a serious risk to persons and it was necessary to take immediate action to protect public health and safety’. Previously the Board had imposed a condition that Dr Milky ‘not have any conduct with female patients’, with 12 women alleging Dr Milky engaged in ‘serious sexual boundary violations’.

Dr Milky made an application to stay the decision of the Board in Victorian Civil and Administrative Tribunal (Tribunal) until the matter was finally decided.

The key issues that were considered in this review were the impact refusing the stay would have on the matter, whether there is a serious question to be tried on the review, whether the granting of the stay is in the public interest, and the period that will elapse before the final hearing of the review.

Other relevant matters that were considered included: whether Dr Milky committed the offences, whether there was bias on the part of the Board, whether the Board acted within its legal limits of power, and the time that would elapse before the final hearing.

The Senior Member, Jonathan Smithers found the Board ‘did not articulate how the physical safety of non-female patients was under threat’ and it was ‘too much of a leap of logic’ to say he ‘poses a serious risk to non-female patients’. Further, the fact that no charges have been laid against Dr Milky was ‘significant’ in this decision.

Weight was also given to the ‘safety of the public’; and that practitioners should not be put out of business ‘until they’ve had the opportunity to prosecute and review applications’.

In conclusion the Tribunal determined that the decision by the Board to suspend Dr Milky be stayed until the final hearing of this proceeding or the Tribunal made a further order.

Read the full case here.

AMA Private Health Insurance Report Card 2019

The Australian Medical Association (AMA) has released its Private Health Insurance (PHI) Report Card 2019.

The PHI Report Card gives consumers clear information about how health insurance works, including the different levels of benefits and gaps across policies, and often significant variation that can occur across states. Its aim is to provide better information to consumers to instil greater confidence in the PHI system.

This year’s Report Card details a health insurance system under pressure. It warns that action is needed to fix the embattled sector and that private health insurance must be made more attractive for Australians if it is to survive. It shows that on average premiums are increasing 3 to 5% a year, compared to stagnant 2% wage growth.

AMA President, Dr Tony Bartone said that “Australians need and demand private health policies that are affordable, transparent, good value, and appropriate for their individual or family circumstances, or they will walk away from private health insurance altogether.”

“An increasing number of younger and healthy Australians are opting out of private health insurance."

“This is leaving a higher proportion of older patients who are increasingly more likely to be suffering from illness or chronic disease and, as a result, they are more expensive to insure, further driving up premiums. This trend is not sustainable."

“Sooner or later, the number of people with private health insurance will fall further – and dramatically.”

A spokesperson for the Federal Health Minister said that “the Government was delivering the most significant reforms to private health insurance in over a decade, which will make it simpler to understand and more affordable.”

The Opposition has called for an inquiry in the PHI industry.

You can read the AMA’s media release here and you can find the Private Health Insurance Report Card 2019 here.

AHPRA and National Boards release new social media guide

The Australian Health Practitioner Regulation Agency (AHPRA) and the National Boards have recently released a new social media guide aimed at assisting registered health practitioners to understand their obligations when using social media.

The social media guide sets out the sorts of things registered health practitioners should take into account when using social media, for example, the National Law, their relevant Board’s Code of Conduct, the Advertising Guidelines and privacy legislation.

From a practical sense, the social media guide also covers common pitfalls of using social media, such as inadvertent breaches of patient confidentiality, for example by sharing comments or photos which disclose patient information. Another common pitfall is posting personal views on public health issues where those views contravene a registered health practitioner’s professional obligations if those statements are inconsistent with codes, standards, guidelines or other public health messaging.

Read AHPRA and the Medical Board’s statement here and access the social media guide here.

Physician-assisted suicide remains opposed by world doctors

Since 1987, the World Medical Association (WMA) has declared and routinely re-affirmed its opposition against euthanasia and physician assisted suicide. Once again, this position was re-affirmed at its 70th General Assembly in Georgia in October 2019.

The WMA defines euthanasia “as a physician deliberately administering a lethal substance or carrying out an intervention to cause the death of a patient with decision-making capacity at the patient’s own voluntary request”. It defines physician assisted suicide as a physician deliberately enabling “a patient to end his or her own life by prescribing or providing medical substances with the intent to bring about death”.

The steadfast opinion of the WMA is twofold. Firstly, it promotes that “utmost respect has to be maintained for human life” and, secondly, it promotes that no physician should be required to facilitate euthanasia or assisted suicide.

The WMA also maintains its opinion that a physician is not ethically compromised where a patient declines medical treatment, even if declining the same will result in his or her death.

The WMA was established in 1947 to establish and promote “the highest possible standards of ethical behavior and care by physicians”. It collaborates with international medical organisations, academic institutions and experts to promote ethical policies, many of which, have been adopted as international ethical standards.

To read more about the WMA's policy of opposition to euthanasia and physician-assisted suicide click here.