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Health Bulletin

RK Health Insights 3 November 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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Children can now decide their future medical treatment under Victoria’s unique advanced directive laws

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New legislation in Victoria will force health practitioners to respect the advanced care directives of both adults and children.

The Medical Treatment Planning and Decisions Act 2016 (Vic) will come into effect in March 2018 and allows children of any age to make directives regarding their future medical treatment, provided they have capacity to do so. To be deemed ‘capable’, children must be able to demonstrate that they understand the nature of the treatment they are making decisions about and the potential outcomes if the advanced care directive is followed.

While the lack of age limit in the Legislation is highly progressive, there are safeguards and strict requirements in place to ensure the safety of both children and adults who wish to make these directives. For example, an advanced care directive must be in English, as well as signed and witnessed by a medical practitioner who must certify that the person is capable of decision making and understands the effects of the statements made.

In the case of children, medical practitioners are able to help the child appreciate the implications of the directive and ensure it is both consistent and practically applicable to the circumstances of the child.
Advanced care directives can be written in relation to any future treatment. However, in the case of children, it is likely these directives will predominantly be written to inform their end of life care.
Advanced care directives for children will ideally be drafted as a collaboration between the child, their parents and the health professionals involved. This collaborative approach will ensure that a meaningful and effective directive is written which both protects children and ensures that any decisions made are in their best interests.

To read the article, click here.

Medical practitioner treatment while performing late stage abortion amounts to unprofessional conduct

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The Victorian Civil and Administrative Tribunal (the Tribunal) found that Dr Mark Schulberg engaged in four instances of unprofessional conduct when he performed a late stage abortion on a patient.
The allegations that were made out concerned Dr Schulburg’s:

  • failure to adequately clinically care for and treat his patient to the extent that he failed to access, follow-up or consider the results of the urgent blood test; 
  • performance of a late stage abortion in circumstances where the patient was unconscious, in renal and liver failure and no anesthesia was administered;
  • failure to ensure an ambulance was called within a timely manner; and
  • that he continued to perform further operations while leaving his unconscious patient without direct medical supervision. 

The Tribunal did not propose to cancel or suspend Dr Schulberg’s registration on the basis that a considerable amount of time had lapsed since the procedure. In addition, Dr Schulberg had his registration cancelled, in relation to other matters and was later re-instated by the Medical Board with appropriate conditions that have been adhered to.

The Tribunal instead reprimanded Dr Schulberg, imposed limitations on his practice and ordered him to undertake education to ensure he not only fully understands the gravity of his errors but is also given tools to guard against future errors and risks.

To read the Medical Board of Australia’s media release, click here.

Adopt WA model of mandatory reporting: AMA

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The Council of Australian Government’s Health Council has released a consultation paper on developing nationally consistent laws for notifying authorities about doctors who need help.  The consultation paper was published following concerns that the current laws are major barriers to doctors accessing the care and support they need.

While the paper proposes four different models, the AMA’s submission recommends adopting the Western Australian model which exempts treating doctors from mandatory reporting requirements. 

The primary issue the AMA is seeking to address by supporting the WA model is that doctors who need help seek appropriate treatment without fear of being reported to the relevant authorities.

To read the AMA’s submission, click here, and the AMA’s media release, click here.


Australia's first policy to prevent violence in hospitals

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The Victorian Government has launched Australia's first policy to protect staff, patients and visitors from violence in hospitals.

Under the policy, all Victorian hospitals will be required to implement a clear and standardised Code Grey policy which deals with preventing, responding to and reducing a violent situation.

The policy is in response to estimated figures that 95 per cent of healthcare workers have experienced physical or verbal attacks while working in Victorian hospitals.

To read the media release, click here.