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Health Bulletin

RK Health Insights 26 September 2017

The latest insights from our Health Law team.

In this edition:

Learn more about Russell Kennedy's expertise in the Health sector here.

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Victorian assisted dying legislation introduced into Parliament

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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

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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

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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

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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.