Legal Implications of Personal Protective Equipment Use When Treating Patients for COVID-19 (SARS-CoV-2).

Front-line health care personnel, including anaesthetists, otolaryngologists, and other health professionals dealing with acute cases of coronavirus, face a high risk of infection and thus mortality. The scientific evidence establishes that to protect them, hospital protocols should require that wearing of the highest levels of personal protective equipment (PPE) be available for doctors and nurses performing aerosol-generating procedures, such as intubation, sputum induction, open suctioning of airways, bronchoscopy, etc. of COVID-19 patients.

Medical Panels in Victoria, Australia and Alberta, Canada: Answering Medical Questions - Determining Matters of Fact and Law?

Medical Panels undertake assessments of injured workers under compensation legislation in both Victoria, Australia, and Alberta, Canada. However, the status afforded the medical answers provided differs markedly between the two jurisdictions. This column considers the nature and implications of these differences.

The European Union General Data Protection Regulation (EU 2016/679) and the Australian My Health Record Scheme - A Comparative Study of Consent to Data Processing Provisions.

As a general rule, lawfulness of data processing under the European Union General Data Protection Regulation (EU 2016/679) (GDPR) is based on affirmative, unambiguous, voluntary, informed, and specific or "granular" consent to processing of their data, including health data, by individuals referred to as data subjects. The GDPR grants data subjects the legal right to specifically agree to (or refuse) having their data processed in any of the ways statutorily defined as "processing". Individuals also have the legal right to be fully informed about each and every intended use of their data by data processors and controllers, and the right to refuse such use.

Mental health legislation (civil) in Australia and China: A comparative perspective.

This comparative review of statutory provisions of Australian and Chinese law focuses on accessibility of mental health care, diagnosis, admission and treatment orders for involuntary patients in civil cases as well as discharge procedures. The introduction contextualises the object of the comparative study, including key rights and principles that are used as the basis for analysis. Such factors as different political and legal systems, history, culture, and infrastructure resources of China and Australia form the background for the legal examination.

“My [Electronic] Health Record” – Cui Bono (For Whose Benefit)?

We examine the operation of Australia’s national electronic health records system, known as the “My Health Record system”. Pursuant to the My Health Records Act 2012 (Cth), every 38 seconds new information about Australians is uploaded onto the My Health Record system servers. This information includes diagnostic tests, general practitioners’ clinical notes, referrals to specialists and letters from specialists.

DISCIPLINARY PROCEEDINGS AGAINST DOCTORS WHO ABUSE CONTROLLED SUBSTANCES.

This study examined 27 reports from disciplinary tribunals throughout Australia (save Tasmania where reports were not accessible) against medical practitioners who abused narcotic analgesics (often combined with other drugs of addiction) between 2010 and 2015. The reports revealed that 12 medical practitioners were in their 40s; five in their 30s; and one person still in their 20s. Although the majority were general practitioners (15 out of 27), other medical specialties were also represented.

Disciplinary proceedings for inappropriate prescription of opioid medications by medical practitioners in Australia (2010-2014).

An analysis of 32 cases reported between July 2010 and September 2014 by professional disciplinary tribunals in New South Wales and Victoria against medical practitioners found guilty of inappropriately prescribing Sch 8 medications (mainly opioids) and Sch 4 drugs (mainly benzodiazepines) demonstrated, among others, a lengthy delay between the occurrence of the miscreant conduct and the conclusion of disciplinary proceedings. The study also raised questions about the appropriateness of utilising common criminal law theories of punishment and deterrence by non-judicial tribunals.

Opioid regulation: time to reconsider the nomenclature and approach.

In Australia, deaths due to the ingestion of opioid analgesics, though numerically small, have been increasing at a rapid rate. The reasons for this increase are multifactorial; the conceptually outdated legislation that controls prescription and administration of opioid analgesics might be one of them. The stated purposes of the governing statutory instruments include prevention of the improper use of drugs of dependence and protection of the public.

From expert witness to defendant: abolition of expert witness protection and its implications.

In Jones v Kaney [2011] 2 AC 398, the United Kingdom Supreme Court held that in England and Wales (but not in Scotland), clients can sue expert witnesses in negligence and/or contract for work performed under their retainer, whether in civil or criminal trials. The duties of expert witnesses in England are regulated by the Civil Procedure Rules and Protocols; the former also regulate the conduct of cases involving expert opinions. The legal context that led to the litigation is examined in the light of these rules, in particular, the nature of the allegations against Dr Kaney, a psychologist retained to provide psychiatric opinion.

The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in court.

The aim of this article is to demonstrate that the ruling commonly cited as the original precedent(1) for the doctrine that, at common law, medical practitioners' duty of confidentiality to their patients does not apply to court testimony,(2) did not, in fact, establish any such theory. The ruling by Lord Mansfield was made in the context of cross-examination by the Crown of a medical witness in the course of the trial of the Duchess of Kingston (Duchess of Kingston's Case (1776) 20 Howell's State Trials 355; [1775-1802] All ER Rep 623; [1776] 1 Leach 146), and this article will look briefly at: (1) the fascinating life of Elizabeth Chudleigh, the Dowager Duchess of Kingston, and the main events that led to her trial for bigamy; (2) the cross-examination of Caesar Hawkins and the different perceptions of the scope of confidentiality held by 18th century lawyers on the one hand and medical practitioners on the other; (3) Lord Mansfield's ruling that witnesses cannot withhold from the court facts which the law considers to be in the public domain; (4) the subsequent wide interpretation, usually as judicial obiter dicta, of its final paragraph during the 19th century, including early jurisprudential responses to the principle of medical confidentiality; and (5) the influence of John Henry Wigmore's opposition to patients' evidentiary privilege at common law during the twentieth century.

Decriminalisation of abortion performed by qualified health practitioners under the Abortion Law Reform Act 2008 (Vic).

In 2008, the Victorian Parliament enacted the Abortion Law Reform Act 2008 (Vic) and amended the Crimes Act 1958 (Vic) to decriminalise terminations of pregnancy while making it a criminal offence for unqualified persons to carry out such procedures. The reform legislation has imposed a civil regulatory regime on the management of abortions, and has stipulated particular statutory duties of care for registered qualified health care practitioners who have conscientious objections to terminations of pregnancy. The background to, and the structure of, this novel statutory regime is examined, with a focus on conscientious objection clauses and liability in the tort of negligence and the tort of breach of statutory duty.

Operation of guardianship laws in the emergency ward.

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment.

Economic impact of Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497.

In Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497 the High Court of Australia held that, among other things, plaintiffs (who establish that they suffer a recognised psychiatric illness as a result of the breach of duty of care owed to them by the defendant under s 32 of the Civil Liability Act 2002 (NSW)) are entitled to recover damages for pure mental harm under s 30 if their psychiatric injury arose "wholly or partly from" a "series of shocking experiences" in the form of "a sudden and disturbing impression on the mind and feelings" in connection with witnessing at the scene "another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant". The High Court construed the phrase "being ..

Healthcare Identifiers legislation: a whiff of fourberie.

The Healthcare Identifiers Bill 2010 (Cth), which will establish "the national e-health Healthcare Identifiers Service to provide that patients, healthcare providers and provider organisations can be consistently identified", is in the process of being enacted by the Australian Federal Parliament. The legislation will enable the government to assign to each "healthcare recipient" a 26-digit electronic "Healthcare Identifier", which will be accessible, with or without the recipient's consent, to a broad range of health care service providers as well as other entities. The individual Healthcare Identifier file will initially contain such identifying information as, where applicable, the Medicare number and/or the Veterans' Affairs number; name; address; gender; date of birth; and "the date of birth accuracy indicator" presumably birth certificate.

Defendants' liability for pure mental harm to third parties in Australia: still a work in progress.

In Australia, both common and statutory law allows compensation for negligently occasioned recognised psychiatric injury, but distinguishes between pure mental harm and consequential mental harm. This column briefly discusses the concept of pure "mental harm" and the major Australian cases relating to defendants' liability to third parties for causing them pure mental harm (Jaensch v Coffey (1984) 155 CLR 549; Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Sullivan v Moody (2001) 207 CLR 562; and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269). The analysis focuses on judicial approaches to determining liability in these cases, especially causation.

Damages for pain and suffering in tort law.

Legislation enacted between 2002 and 2005 by each Australian State and Territory reformed and partially codified the common law of personal injuries. This column examines the nature and history of damages for pain and suffering and analyses the approach taken by different Australian jurisdictions to compensation for non-economic loss. Non-economic loss is generally composed of pain and suffering, loss of amenities of life, and loss of enjoyment of life (some jurisdictions, eg New South Wales, also include disfigurement, and loss of expectation of life).

Psychiatric injury law in England and Australia--drawing closer together?

Major differences developed between English and Australian psychiatric injury law from about 1990 onwards, particularly in "secondary victim" cases. The House of Lords endorsed the traditional restrictions of aftermath, direct perception and sudden shock, whereas the High Court of Australia adopted a more enlightened approach which relied chiefly on foreseeability of psychiatric injury. In the last five years, there are indications that the gap has narrowed a little.

Substituted consent: from lunatics to corpses.

This analysis traces the origins and evolution of the doctrine of surrogate or substituted judgment, especially its application to medical treatment, including non-therapeutic sterilisation, decisions regarding life and death choices, and more recently, removal of sperm or eggs from incompetent, dying or dead males and females. It argues that the doctrine, which has been acknowledged to be a legal fiction, has an effect of devolving legal and moral responsibility for life and death choices, as well as non-consensual, non-beneficial intrusive procedures, from the competent decision-makers to the incompetent patient. It focuses on the subjective nature of the substituted judgment standard; the problematic nature of evidence propounded to establish the putative choices of the incompetent person; lack of transparency relating to the conflict of interest in the process of substituted judgment decision-making; and the absence of voluntariness, which is an essential element of a valid consent.

Assessment of competency: a primer.

Determination of testamentary capacity involves not only application of standard tests for decisional competency but also consideration of such special factors as the testator's "moral duty" to those entitled to her or his bounty (also referred to as "common obligations of life"), and the concept of emotional capacity. It is important for medical and legal practitioners who are involved in assessment of testamentary capacity to be aware of these special factors or requirements, their nature and their effect on the validity of the testator's will. The relevant tests and special factors are examined from an historical perspective.