The High Court's lost chance in medical negligence: Tabet v Gett (2010) 240 CLR 537.

In 2010 the High Court of Australia in Tabet v Gett (2010) 240 CLR 537 determined an appeal in a medical negligence case concerning a six-year-old girl who had presented to a major paediatric hospital with symptoms over several weeks of headaches and vomiting after a recent history of chicken pox. The differential diagnosis was varicella, meningitis or encephalitis and two days later, after she deteriorated neurologically, she received a lumbar puncture. Three days later she suffered a seizure and irreversible brain damage.

Withdrawing treatment at the direct or indirect request of patients or in their best interests: HNEAHS v A; Brightwater CG v Rossiter; and Australian Capital Territory v JT.

In Hunter and New England Area Health Service v A [2009] NSWSC 761; Brightwater Care Group (Inc) v Rossiter [2009] WASC 229; and Australian Capital Territory v JT [2009] ACTSC 105 Australian courts have recently considered the circumstances in which technically futile treatment may be withdrawn from patients at their direct or indirect request or purportedly in their best interests. The cases provide many valuable lessons about how norms of ethics, law and international human rights shape the regulatory framework of this area of health care in Australia.

Constitutional limits on federal legislation practically compelling medical employment: Wong v Commonwealth; Selim v Professional Services Review Committee.

A recent decision by the High Court of Australia (Wong v Commonwealth; Selim v Professional Services Review Committee (2009) 236 CLR 573) (the PSR case) has not only clarified the scope of the Australian constitutional prohibition on "any form of civil conscription" in relation to federal legislation concerning medical or dental services (s 51xxiiiA), but has highlighted its importance as a great constitutional guarantee ensuring the mixed State-federal and public-private nature of medical service delivery in Australia. Previous decisions of the High Court have clarified that the prohibition does not prevent federal laws regulating the manner in which medical services are provided. The PSR case determined that the anti-overservicing provisions directed at bulk-billing general practitioners under Pt VAA of the Health Insurance Act 1973 (Cth) did not offend the prohibition.

Recent legal developments and the authority of the Australian Therapeutic Goods Administration.

Recent legal developments have highlighted the need for greater support from the Federal Government for the authority of the Therapeutic Goods Administration (TGA) to ensure, by pre-approval assessments and post-approval regulation, the safety of listed medicines in Australia. One of these developments concerns the impact of ongoing civil litigation in Australian courts led by Pan Pharmaceuticals stakeholders to recover compensation from the government for the losses they incurred following the TGA's post-listing shut-down of that pharmaceutical manufacturing company in 2003. Another factor is the recently announced governmental policy to outsource to the United States Food and Drug Administration (FDA) and the European Medicines Agency (EMEA) safety assessments of foreign drug manufacturers whose products will be used in Australia.

New Australian federal organ and tissue donation legislation: enhanced transplant services but no "opt-out".

Seriously ill people who could achieve many years of high-quality life with organ donation continue to die on waiting lists due to the scarcity of donated organs. Recent advances that suggest donor organs can be coated with host stem cells to reduce or remove the need for long-term recipient immunosupressive medication highlight the importance of encouraging such donation. A wide variation in organ donor rates in developed nations suggests this is one issue in which the right regulation can make a difference.

Selim v Lele and the civil (industrial) conscription prohibition: constitutional protection against federal legislation controlling or privatising Australian public hospitals.

Selim v Lele (2008) 167 FCR 61; [2008] FCAFC 13 was a decision of the Federal Court which interpreted s 51(xxiiiA) of the Australian Constitution. This section accords the federal government, among other things, power to make laws with respect to the provision of "medical and dental services (but not so as to authorise any form of civil conscription)". The Federal Court decided that the phrase "civil conscription" was analogous to "industrial conscription".

Supervising junior doctors and "on-call" responsibilities: Brus v Australian Capital Territory; Greater Southern Area Health Service v Angus.

The recent decisions of Brus v Australian Capital Territory [2007] ACTSC 83 and Greater Southern Area Health Service v Angus [2007] NSWSC 1211 highlight different aspects of the difficulties associated with supervision of junior doctors in the present public-funded Australian public hospital system. Their facts reveal how difficult it is for senior staff to achieve the fine balance required to assist trainees by according adequate experience and responsibility on the one hand, and to ensure patient safety, on the other. In addition, these cases highlight problems with the supervision process that are likely to be exacerbated in a privatised health care setting where senior staff may have less inclination to supervise struggling juniors unless adequately remunerated for such teaching, an issue of considerable controversy given the focus on profit of those institutions.

Re Herrington: aboriginality and the quality of human rights jurisprudence in end-of-life decisions by the Australian judiciary.

In Re Herrington [2007] VSC 151 (King's Case) the partner and family of an Aboriginal woman (diagnosed as being in a persistent vegetative state after an accident) sought an order from the Victorian Supreme Court that the decision of her treating doctors to withhold further medical treatment be opposed. The resultant judicial decision contains a very brief review of the now considerable case law in this area, does not mention the increasingly important role of clinical ethics committees in this context, or discuss the relevance of recently passed human rights legislation in Victoria. Given the statutory requirement for judicial reference to international human rights norms in jurisdictions such as Victoria and the Australian Capital Territory, and their increasing importance in other developed nations, the authors highlight the need for the Australian judiciary to lift the quality of their jurisprudence in relation to end-of-life cases.

The Carhart case and late-term abortions -- what's next in Australia?

A recent case in the United States Supreme Court has indicated a change in course on the issue of abortion rights. In Gonzales v Carhart 127 S Ct 1610 (2007), the Supreme Court, in April 2007, upheld federal legislation banning a particular late-term abortion procedure with no exceptions (even to preserve the mother's life). This column examines the case in the context of recent Australian cases involving abortion issues.

Abandoning the common law: medical negligence, genetic tests and wrongful life in the Australian High Court.

The Australian High Court recently found that the common law could allow parents to claim tortious damages when medical negligence was proven to have led to the birth of an unplanned, but healthy, baby (Cattanach v Melchior (2003) 215 CLR 1). In Harriton v Stephens (2006) 80 ALJR 791; [2006] HCA 15 and Waller v James; Waller v Hoolahan (2006) 80 ALJR 846; [2006] HCA 16 the High Court in a six-to-one decision (Kirby J dissenting) decided that no such claim could be made by a child when medical negligence in failing to order an in utero genetic test caused the child severe disability. In an era when almost all pregnancies will soon require patented fetal genetic tests as part of the professional standard of care, the High Court, by barring so-called "wrongful life" (better termed "wrongful suffering") claims, may have created a partial immunity from suit for their corporate manufacturers and the doctors who administer them.