Health Alert (Australia) - 13 January 2014

JUDGMENTS

South Australia

16 December 2013 - RE H, AE (No 3) [2013] SASC 196

In 2011, spermatozoa was removed from the applicant's late husband (Re H, AE). In 2012, the Court concluded the applicant had established a case for the release of the spermatozoa for In Vitro Fertilisation (IVF) treatment (Re H, AE (No 2)) but before an order could be made, consent should be sought from the Attorney-General for an exemption under the Assisted Reproductive Treatment Act 1988 (SA). The Attorney-General advised he did not have power to enable assisted reproductive treatment in the manner sought, and such treatment would be inconsistent with the policy requirement that a person provide consent for the use of their gametes prior to death.

Unlike South Australia, the Australian Capital Territory (ACT) does not have legislation regulating the provision of assisted productive technology, and the applicant located a clinic in Canberra to perform IVF. In the ACT, the Reproductive Technology Accreditation Committee of the Fertility Society of Australia requires compliance with the National Health and Medical Research Council's Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research 2007. The Guidelines state "Clinics must not facilitate use of gametes to achieve pregnancy ... unless ... a deceased person has left clearly expressed and witnessed directions consenting to the use of his or her gametes". While Judge Gray was satisfied the applicant had produced sufficient evidence that the deceased wished to have a family with her, it was up to the clinic to make its own determination.

Judge Gray granted the applicant use of the spermatozoa, under the control and supervision of the Canberra clinic.

New South Wales

23 December 2013 - Health Care Complaints Commission (HCCC) v Shashank Verma [2013] NSWPYT 2

The Commission alleged that Mr Verma, a registered physiotherapist, failed to maintain proper professional boundaries with a widowed and childless elderly nursing home patient, by engaging in a personal and financial relationship with her while providing her with treatment.

The Physiotherapists Tribunal found that by allowing a personal relationship to develop between his patient and his family members, Mr Verma had not failed to maintain proper professional boundaries, as such boundaries did not extend to his family members. It was also found that Mr Verma being named as executor and beneficiary of the patient's was not a breach of professional boundaries, as he was not aware of this until shortly before her death.

What did cross professional boundaries and violate the Physiotherapist Registration Board Code of Conduct was Mr Verma's appointment as the patient's Enduring Guardian and Power of Attorney and agreeing to hold significant sums of money which the patient asked him to safeguard, while still maintaining a professional relationship by treating her.

The Tribunal agreed that Mr Verma and his family had not engaged in deliberate exploitation of the patient in allowing the personal relationship. He was therefore found guilty of unsatisfactory professional conduct, not professional misconduct. "This is a case where acts of kindness by a health practitioner's family towards an elderly patient...can amount to a breach of proper professional boundaries."

Mr Verma was reprimanded and his practice subject to conditions, such as him completing an Ethics Course to the satisfaction of the Physiotherapy Council of NSW.

17 December 2013 - Indochina Medical Co Pty Ltd v Nicolai [2013] NSWCA 436

Evidence - evidence on commission or letters of request - jurisdiction and in general - application under Evidence on Commission Act 1995 for issue of commissions for examination in France and Switzerland - proposal that commissioner interview persons, determine which, if any, facts elicited are relevant to party's case in the proceedings and record those facts in affidavits to be sworn before commissioner - whether that procedure may be the subject of a commission - alternative application under the Act for issue of letters of request directed to judicial authorities of those countries - same function of eliciting, selecting and recording facts envisaged - no statement or description of evidence to be adduced - whether letters of request should be ordered.

17 December 2013 - HCCC v McKay [2013] NSWMT 20. Medical practitioner - general practitioner - inappropriate personal relationships with two patients - professional misconduct.

23 December 2013 - Reid v Wright (No 2) [2013] NSWSC 1972. Costs - where proceedings commenced in this Court transferred to the Supreme of Queensland on the application of the defendants.

19 December 2013 - Coote v Kelly (No 2) [2013] NSWCA 457. Costs - notice of motion to vary costs order - no basis for different order for costs demonstrated.

13 December 2013 - Awad v Western Sydney Local Health District [2013] NSWADT 287. Anti-discrimination - complaints of direct and indirect race discrimination in employment and victimisation - whether requirement of "demonstrated excellence" in at least one clinical specialty practice is an unreasonable requirement for promotion to Grade 3 pharmacist - whether head of department victimised applicant by convening selection panel when applicant had made a complaint of discrimination against him.

19 December 2013 - Goddard v Central Coast Health Network [2013] NSWSC 1932. Family Law - effect of parenting orders where no adoption order. Torts - negligence - whether surgery negligent -whether post-operative review and discharge was negligent - whether advice to bring patient in to Emergency Department where health deteriorated was negligent - contributory negligence - effect of subsequent bereavement on assessment of non-economic loss.

Damages - Compensation to Relatives Act 1897 - assessment of damages - whether subject to s 15 of Civil Liability Act - whether quasi-adoption ought be regarded as reducing or extinguishing loss in same way as remarriage.

19 December 2013 - O'Reilly v Western Sussex NHS Trust (No.4) [2013] NSWSC 1905. Procedure - two motions to amend statement of claim - application of ss 56 and 57 of Civil Procedure Act 2005 -amendments appropriate where additional evidence can be obtained without any real delay and without any undue expense - amendment of pleadings to reflect evidence is permissible - amendment is not appropriate in the interests of justice, where a new claim is pleaded and evidence is not readily available - No point of general principle.

17 December 2013 - Application by Bar-Mordecai [2013] NSWSC 1908. Practice and procedure - vexatious litigant - application for judicial review of decision of Medical Tribunal in 2009 - nature of jurisdiction - no need for oral hearing - no prima facie ground - unexplained delay - leave refused.

12 December 2013 - Harris v Bellemore (No 6) [2013] NSWSC 1859. Procedure - where proceedings remitted after an appeal for determination of specific questions - scope of further evidence that should be admitted.

11 December 2013 - Hoang v South Eastern Sydney Local Health District [2013] NSWSC 1844. Procedure - pleadings - medical negligence - strike out - whether statement of claim discloses reasonable cause of action - where statement of claim not accompanied by an expert opinion - whether proceedings should be dismissed -application for referral for pro bono legal assistance - whether such referral in the interests of the administration justice.

11 December 2013 - Mahony v Branley [2013] NSWSC 1835. Procedure - pleadings - medical negligence - strike out - whether statement of claim discloses a reasonable cause of action - where statement of claim not accompanied by an expert opinion - whether proceedings should be dismissed.

9 December 2013 - Prodanovich v Mukherjee [2013] NSWSC 1833. Judgments - setting aside - judgment irregularly entered - consent judgment for second defendant - first defendant not consulted - judgment set aside.

20 December 2013 - HCCC v Leonard (No 2) [2013] NSWPST 5. Unsatisfactory professional conduct; failure to establish and maintain professional boundaries; use of telephone counselling; appropriate protective orders; costs.

5 December 2013 - HCCC v Davis (No 2) [2013] NSWNMT 25. Complaint against a nurse - conduct towards residents of an aged care facility - unsatisfactory professional conduct - professional misconduct - non-publication order - stage two hearing - protective orders - prohibition order - costs.

Commonwealth

20 December 2013 - The study and prevention of psychological diseases foundation incorporated and commissioner of taxation [2013] AATA 919. Taxation - income tax - tax exemption - income tax exempt entity - deductible gift recipient - whether charitable institution - whether health promotion charity - date of effect of revocation - objection decision affirmed.

13 December 2013 - Colquhoun v Capitol Radiology Pty Ltd and Ors; Colquhoun v Capitol Radiology Pty Ltd and Ors; Georgiou v Capitol Radiology and Ors; Colquhoun v Capitol Radiology and Ors [2013] HCATrans 320. Special leave application - not granted.

13 December 2013 - Brett Anthony Collins v Attorney General in and for the State of New South Wales [2013] HCASL 202. Special leave application to appeal against a determination of the Mental Health Review Tribunal on a review of arrangements for a forensic patient's care, treatment and detention - not granted.

Australian Capital Territory (ACT)

23 December 2013 - Chaloner & Anor. v Australian Capital Territory [2013] ACTSC 269. Human Rights - deceased subjected to medical treatment without her free consent: 10(2) Human Rights Act 2004 (ACT) - no allegation of vicarious liability of the ACT being the relevant legal entity responsible for Canberra Hospital as a "public authority": s 40.

Human rights - Statutory Interpretation - victim for purposes of ss 40B, 40C Human Rights Act, only person whose right is infringed -...