In this edition:

Victorian assisted dying legislation introduced into Parliament

The assisted dying legislation was introduced to Parliament by the Minister for Health on 21 September 2017.

The Bill is consistent with the safeguards recommended by the Ministerial Advisory Panel (Panel) which provided advice on the practical and clinical implications of the Bill.

The Bill, as introduced, is currently available here.

Our previous alert on the Panel’s recommendations is accessible here.

Cosmetic procedure complaints and calls for tightened laws

In the past seven months, the Health Complaints Commissioner (HCC) has received 30 complaints relating to cosmetic procedures performed by a variety of providers. Most complaints have related to poor-quality treatment or procedures that failed to meet patients' expectations.

Commissioner Karen Cusack believes it is the responsibility of health service providers to ensure patients are well informed of the risks that even routine procedures carry.

The HCC commenced operation in early 2017 and replaced the Health Services Commissioner. The HCC is subject to the recently amended Health Complaints Act 2016 (Vic) (Act) which includes expanded investigative powers and a new Code of Conduct for general health services.

The Act and HCC have arrived at a time of significant controversy within the cosmetic surgery industry. The death of a young woman at a Sydney beauty clinic in August garnered significant media attention and prompted calls for the NSW Government to tighten beauty industry laws.

Jean Huang died at the hands of a Chinese tourist who administered a local anesthetic and breast filler despite having no legal qualifications in Australia.

Shadow Health Minister Walt Seccord believes there is room to tighten legal loopholes in the industry but expressed regret that, despite the number of complaints, “it’s unfortunately an industry that’s populated with cowboys”.

To read the HCC’s media release, click here.

Medibank wins court case over misleading and deceptive conduct

In June 2016, the Australian Competition and Consumer Commission (ACCC) commenced proceedings against Medibank, Australia’s biggest private health insurer, over allegations of false, misleading or deceptive representations and engaging in unconscionable conduct.

The allegations concerned Medibank’s failure to notify its consumers and those of its subsidiary, ahm, of its decision to change and limit benefits for in-hospital pathology and radiology services. Since at least 1 January 2012, Medibank had in place arrangements with in-hospital pathology and radiology services whereby any out-of-pocket fee would be covered by the consumer’s Medibank membership. Its decision to terminate this arrangement and phase-out the no out-of-pocket arrangement for in-hospital pathology and radiology without notifying consumers lead to the proceedings.

Medibank argued that it had never told members that all costs associated with these services would be fully covered and rather that benefits were paid towards the cost of these services.

Justice David O’Callaghan of the Federal Court agreed adding that it was a business decision and there was nothing remotely unconscionable about it.

The ACCC has been ordered to pay costs and has stated it is carefully reviewing the Court's decision.

To read the ACCC’s media release, click here.

To read Medibank’s media release, click here.

Predatory chiropractor never to practise again

The Australian Health Practitioner Regulation Agency (AHPRA) and Chiropractic Board of Australia (Board) have cancelled the registration of a chiropractor, Mr Marin, found guilty by the South Australian Health Practitioners Tribunal (Tribunal) of professional misconduct.

The Tribunal found Mr Marin had engaged in predatory behaviour by exerting pressure to enter an expensive weight loss program, often without justification. Mr Marin would use x-rays and heart rate variability tests to exaggerate the severity of a condition. His chiropractic and weight loss program also lacked professionalism and individual care and attention.

In addition, Mr Marin indiscriminately used plain film x-rays, including for children, without clinical justification and breached privacy by permitting the CCTV camera in the x-ray room to operate when patients were undressing.

On 30 August 2017, the Tribunal handed down its sanctions reprimanding Mr Marin in the strongest possible terms. In addition to his registration being cancelled, he has been permanently disqualified from reapplying for registration and prohibited from providing any health services. He was also fined $20,000.

AHPRA and the Board have applauded the decision of the Tribunal stating it is a win for patients and a warning to all registered health practitioners.

AHPRA’s statement on the findings can be found here and the sanctions here.

Medical college did not discriminate

A trainee with an “exam phobia” asked a medical college to grant Fellowship without him having to sit the final exams. The college refused, but offered ways to accommodate his disability. The trainee lost his claim of discrimination against the college.

In Sklavos v Australasian College of Dermatologists, the Court upheld an earlier decision that the college did not directly or indirectly discriminate by requiring the trainee to sit a final written and clinical exam. The Court found that the college's assessment method, which was based on an exam was a reasonable method to assess the knowledge of practitioners. Any other finding would have had significant consequences.

To be registered as a dermatologist in Australia, a trainee must pass the college’s final written and clinical exams. The trainee suffered a psychiatric disorder (being a specific phobia) and believed that he should be excused from the exam. He alleged that the college engaged in disability discrimination and could have made a reasonable adjustment of assessment, for instance workplace-based assessment.

The original decision:

  • The primary judge accepted that the trainee’s phobia was a disability under the Disability Discrimination Act 1992 (Cth) (“DDA”). The disorder was a specific phobia triggered by the college assessing his capacity to be a dermatologist. Initially, the specific phobia was a fear of sitting the college’s final exams but, by the time of trial, had extended to a fear of any assessment by the college.
  • In 2011, the trainee provided the college with a report from his psychiatrist stating that he had a phobia which would have a disabling effect on his capacity and performance when participating in the college’s exam. As a result, he requested that the college admit him as a Fellow without him passing the college’s final exams.
  • The college considered the request but declined it. The college would consider any reasonable request made by him for special conditions in the exams under the college’s special consideration policy. Despite this, the trainee decided that he was unable to sit the exams.
  • Dr Sklavos commenced proceedings and alleged that the college had contravened the DDA by not accommodating his disability. He pursued a number of causes of action against the college, including the college's failure to make reasonable adjustments, which amounted to either direct or indirect unlawful discrimination under the DDA. The claims were dismissed by the trial judge.

The appeal:

  • The trainee appealed the original decision and contended that the college had breached the DDA by:
    • Failing to make reasonable adjustments to the method of addressing his eligibility for Fellowship, amounting to direct discrimination; and
    • Requiring that, as a condition of eligibility for election as a Fellow, he pass the college's examination, amounting to indirect discrimination.
  • He also submitted that he suffered financial loss as a direct consequence of the college's alleged contraventions of the DDA.

Findings:

  • The Court found that nothing the college did was because of the doctor's disability. The Court found that the college's requirement that all trainees sit and pass exams applied generally and therefore Dr Sklavos did not receive less favourable treatment than his peers. As such, because the exam requirements were not imposed due to the doctor's disability, there was no direct discrimination.
  • The parties agreed that the college imposed a condition upon the doctor that he needed to pass in order to be admitted as a Fellow and that, due to his disability, he could not comply with this condition. Consequently, the requirement had the effect of disadvantaging people with the doctor's disability. However, the exam requirement would not be indirect discrimination, if it was reasonable in the circumstances.
  • The Court considered the challenges the college would have encountered if they provided an alternative assessment. The Court considered:
    • The training and assessment practices that ensure that only medical practitioners who are "safe to practise" dermatology are accredited;
    • The impracticality of an alternative assessment method; and
    • The effect this outcome would have on the trainee. However, this adverse impact was balanced against two other factors. First, that the trainee was still able to practise with a focus on skin conditions. Secondly, he had performed poorly in his prior clinical exams and demonstrated an inability to interact well with the college. The Court found that this provided some indication as to the probability of his success if a substitute assessment had been provided.
  • As a result, the Court upheld that the college's assessment method was appropriate. Whether an alternative mode of assessment may have been possible, for example workplace-based assessments, did not detract from the reasonableness of the exam requirement, given the appropriateness of that requirement to assess practitioners.
  • Thus, the trainee had not been treated less favourably than a person without the disability in the circumstances and the proposed adjustment of an alternative assessment method would impose an unjustifiable hardship on the college.

Key principles:

  • In considering whether a condition or requirement is reasonable, the fact that an alternative option may exist will not necessarily mean the requirement or condition imposed is unreasonable.
  • When assessing reasonableness, the volume of work, effort and time involved in implementing reasonable adjustments and the likelihood of the aggrieved person being able to comply with those adjustments will be considered.
  • Although a failure to make reasonable adjustments for a person with a disability is relevant to the assessment of direct and indirect discrimination, direct discrimination relates to the treatment of the aggrieved person while indirect discrimination relates to the impact of particular conduct.

Practical implication:

  • Colleges need to be aware of the obligation to make reasonable adjustments for persons with disabilities. When determining whether adjustments are reasonable, colleges should consider all of the circumstances, including the adverse impact on the employee.