PIACBulletin16 - Public Interest Advocacy Centre

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Medical negligence reforms will harm health care Amanda Cornwall, Senior Policy Officer PIAC, the Australian Consumers Association and the Heath Issues <strong>Centre</strong> have joined together to urge state and federal governments to provide longterm, sustainable solutions to the crisis in medical indemnity and insurance Regrettably, the Commonwealth and NSW governments have taken the position that a short-term appeasement of some elements of the organised medical profession is sufficient to solving a complex problem with ramifications for the entire community The Commonwealth Government proposals are seen as an attempt to shore up an indemnity and insurance system that is not commercially viable by subsidising high-risk practitioners and limiting consumers’ right to sue for negligent care The proposals are contained in the reports of the Review of the Law of Negligence commissioned by the Federal Government, known as the Ipp Review PIAC is particularly concerned about a proposal that the role of judges in deciding the appropriate standard of care provided to a patient be replaced by “peer professional opinion” The proposal was recommended by the Ipp Review and is part of the Civil Liability Amendment (Personal Responsibility) Bill 2002, introduced into the NSW Parliament on 23 October The bill allows the court not to rely on “peer professional opinion” if it considers the opinion is ”irrational” The provision would reverse important improvements in health care over the past decade that have supported an evidence-based approach to appropriate health care It has the potential to protect poor practitioners to the detriment of consumers and undermine the quality and safety of health care in Australia The provision is a return to the Bolam principle, a principle adopted by the English courts that makes decisions about a doctor’s standard of care a matter for medical judgement, not a matter for the courts Bolam was rejected by the Australian High Court in 1992 in Rogers v Whitaker (1992) 175 CLR 479 Even in England, there has been a move away from Bolam given its potential to undermine evidence-based medicine The need for the amendment has not been established The Ipp Review recommends the amendment on the basis that judges are making medical decisions for which they are not qualified However, no examples of the claim are provided in any of the submissions to the review or in its report Reparations tribunal supported continued from p 2 Generations Taskforce to provide a voice for the stolen generations and achieve co-ordination of government programs The Queensland Government’s Community and Personal Histories Section has provided access to historical state records about Aboriginal and Torres Strait Islander peoples and PIAC and the other consumer groups support a single national insurer, with cross-subsidies between the high and low risk areas of practice In the longterm, these groups support a “no fault” compensation scheme for people injured while receiving health care, similar to schemes operating in New Zealand or Sweden A number of medical colleges and many presidents of medical training colleges, also support this position PIAC supports the more considered and evidence based reforms to the medical indemnity and insurance industry put forward by the Australian Health Ministers Advisory Council Medical Indemnity Working Party and Consultative Forum PIAC has been a member of the Consultative Forum since its inception last year The Working Party has provided detailed proposals to Health Ministers on structured settlements, long-term care and most recently, published a review of legal processes # assisted many people to piece together family histories and genealogy since 1992 More than half the archivists and historical researchers are Indigenous peoples Community initiatives and activities at the local level are also part of achieving rehabilitation The success of the Journey of Healing, as a community initiative with minimal funding, in bringing people together for reconciliation and healing, demonstrates the benefits of local and regional initiatives # 4 PIAC Bulletin No 16 • December 2002
Peace advocate Neri Javier Colmenares visits PILCH Andrew O’Keefe, PILCH secondee solicitor (Allens Arthur Robinson) The role of the International Criminal Court (ICC) in a world increasingly confronting acts of terror and war was the subject of a lunchtime PILCH seminar by Neri Javier Colmenares, a Filipino human rights lawyer and peace advocate His address was attended by representatives of the Red Cross, the Attorney-General’s Department, the Australian Government Solicitor, the National Council of Churches and solicitors from several PILCH member firms After years of negotiations, the ICC was approved when 120 states signed the Rome Statute in 1998, and formally established when over 60 states ratified the agreement on 1 July 2002 The Court has jurisdiction to try individuals for four types of crime, being genocide, war crimes, crimes against humanity, and “the crime of aggression” Unlike the ad hoc tribunals that the UN has previously established to deal with crimes in, for example, Rwanda and the former Yugoslavia, the ICC is a permanent body, and its establishment represents the first time in history that such a Court has been recognised as having universal jurisdiction over crimes committed by individuals Of the four species of crime which the ICC is empowered to judge, only “aggression” has been left undefined by the signatories, mostly due to a concerted campaign of opposition mounted by the USA Although there is already opinio juris on the meaning of “aggression” in international law (which revolves around the notion of unjustifiably and forcibly toppling a head of state (see, for example, the ICJ Nicaragua Case), the Rome Neri Colmenares and Andrew O’Keefe at PIAC — Photo: Jim Wellsmore signatories have left the question open until they meet again in 8 years’ time In Neri’s opinion, this failure to focus on the crime of aggression is of acute concern in the current climate of the “War on Terror ” Mr Bush’s dictum at the outset of the War on Terror was unequivocal: “Either you are for us or you are against us” With that statement, the US declared a state of world war, or global aggression, in which each and every nation was implicated merely by its political position on a potential conflict The danger lies in the fact that once a person or group is labelled as “terrorist”, they are by definition an enemy of the US and its allies in the global war And once enemy groups are identified, the “coalition against terror” is given justification for interferences with the sovereignty of nations By way of example, Neri noted the case of the Abu Sayaff in the Philippines The Abu Sayaff (a group originally armed and trained by the US to fight the Soviets in Afghanistan) have for some years conducted a campaign of Muslim separatism against the Philippine government This campaign has never threatened the US, but by virtue of the methods employed by the Abu Sayaff to agitate against the Filipino government, the group has been defined as “terrorist” Therefore, according to the logic of the War on Terror, the US has a right to wage battle against it And in fact the US, like Frankenstein against his monster, has already sent nearly 2,000 soldiers to the Philippines to conduct military PIAC Bulletin No 16 • December 2002 5
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