Hot Topics 64 - Health and the Law - Legal Information Access Centre

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Overview of Health Law in Australia rOle Of THe cOnsTiTuTiOn, parliamenT and cOurTs In Australia, the Commonwealth (Federal) Parliament and the state and territory parliaments have power to make laws in relation to health and medical matters. The Federal Government is restricted to making legislation on heads of power specifically listed in the Constitution such as those mentioned in s 51. Section 51 xxiiiA was inserted after a referendum in the 1940s to allow federal laws about, among other things, ‘pharmaceutical, sickness and hospital benefits’ as well as ‘medical and dental services’. This section forms the basis of the federal law (the National Health Act 1953 (Cth) which establishes the Pharmaceutical Benefits Scheme (PBS) where the federal government pays most of the cost of medicines and bargains down their price on the basis of evidence about their cost-effectiveness. It is not possible to argue that funding and control of public hospitals comes within the meaning of ‘medical’ services in section 51 xxiiiA, because running hospitals involves a variety of other services such as nursing services, administration services, physiotherapy etc. The legislation passed by parliaments of the states and territories in relation to health falls into three main areas: > public health; > administration of public hospitals and licensing of private hospitals and private nursing homes; > regulation of the medical and other health professions. Judges sit on a variety of courts to interpret and apply legislation and constitutional provisions to the particular facts of cases heard by the courts. The High Court sits in Canberra and there are also Federal Courts (interpreting federal legislation), state and territory Supreme Courts and then below them in the hierarchy, District Courts, magistrates courts or local courts. HOT Tip In section 51 xxiiiA, the words ‘medical and dental services, but not so as to authorise any form of civil conscription’ arose as a result of one of the few successful constitutional referendums, held on 28 September 1946, after WWII. The Chifley (Labor) government proposed the Constitution Alteration (Social Services) Bill 1946 which, among other things, gave it power to create a scheme of free essential medicines. This was opposed at the time by the British Medical Association, the forerunner of the Australian Medical Association, the trade union of doctors which opposed what they saw as the beginning of socialised medicine. 1 regulaTing dOcTOrs and OTHer HealTH prOfessiOnals Doctors and other health professionals (such as nurses, physiotherapists and counsellors) are regulated in what they do professionally by codes of ethics such as the updated version of the Hippocratic Oath called the Geneva Declaration 2 and the Australian Medical Association Code of Ethics. 3 Some core obligations of such oaths are that doctors: > should respect their patients’ rights to confidentiality > should not deliberately harm or abuse patients > should not work beyond their level of competence > should treat patients equally. Ethics committees considering proposals for research may also consider principles flowing from the Declaration of Helsinki 4 such as the need to fully inform subjects of the risks involved and any conflicts of interest the doctors might have. Also relevant are institutional guidelines and policies (many produced by the National Health and Medical Research Council (NHMRC), contractual terms of employment of hospital staff, judicial decisions (‘case law’), laws of the Federal parliament and of state parliaments. The ACT and Victoria now have legislation requiring judges to take into account human rights 1. For further discussion, see ‘Devaluation of a Constitutional Guarantee: The History of Section 51(XXIIIA) of the Commonwealth Constitution’, Danuta Mendelson, Melbourne University Law Review, available at www.austlii.edu.au/au/journals/MULR/1999/14.html 2. Available from the website of the World Medical Association at www.wma.net/e/policy/c8.htm 3. Available online at http://www.ama.com.au/web.nsf/tag/amacodeofethics 4. Available from the website of the World Medical Association at www.wma.net/e/policy/b3.htm Overview of Health Law in Australia 1
when resolving ambiguities in legislation. International human rights relevant to health include the ‘right to life,’ the prohibition of ‘cruel, inhuman or degrading treatment or punishment’ and of medical or scientific experimentation without ‘free consent’. The behaviour of doctors and health professionals is also regulated by the laws that bind everyone, such as criminal and civil law, common law and legislation as discussed earlier. Particularly important is the tort of negligence under which a plaintiff must prove that the persons he/she is suing has breached a recognised duty of care and caused damage of a type that the law recognises as compensable. regulaTing medicines and medical deVices The Therapeutic Goods Act 1989 (Cth) provides a framework for regulating medicines and medical devices to ensure their quality, safety and effectiveness. Medicines assessed as having a higher level of risk are evaluated and registered, whereas lower risk consumer medicines including complementary medicines and vitamins are assessed for quality and safety. Regulations under the Act set out requirements for advertising and labelling. The Therapeutic Goods Administration is responsible for evaluating prescription medicines to decide which can be sold in Australia, and which are listed on the Pharmaceutical Benefits Scheme, a scheme which subsidises the cost of necessary prescription medicines for consumers. For information on the Therapeutic Goods Administration see www.tga.gov.au and for information on the Pharmaceutical Benefits Scheme see www.pbs.gov.au medical negligence Once a doctor willingly accepts a patient’s request for a medical opinion, they owe that patient a ‘duty of care’. The doctor’s duty is to achieve the best outcome for image u navailable that patient, but is under no obligation or duty to cure them. The standard of care in general terms will be that of a reasonable doctor in the defendant’s position. Junior doctors do not owe a lower standard of care, as all doctors who are registered are held out to the public as reaching a minimal acceptable standard of care. To make a claim for medical negligence you need to prove that a duty of care was owed by the professional, that the standard of care was broken and that damage arose. HOT Tip ‘Duty of care’ is the obligation owed to anyone who could be injured by a person’s lack of care. It must be ‘reasonably foreseeable’ that an injury could result from the lack of care: Donoghue v Stevenson [1932] AC 562. The duty may be owed to a person in a specific category, such as a doctor to a patient. Traditionally, doctors were not said to have breached their duty of care if they acted in accordance with a practice accepted by their peers – that is, by a body of practitioners skilled in that particular field. This is known as the ‘Bolam’ test, after an English case: Bolam v Friern Hospital Management Committee (1957) 1 WLR 582. 5 This case was accepted and followed in Australia for some time. The law in Australia changed, however, due to the groundbreaking High Court case Rogers v Whitaker: see case study, p 3. The essence of the change lay in who it was that could determine that a practitioner was negligent. Under the Bolam test, a practitioner’s peers (i.e. other doctors) set the standard. But under Rogers v Whitaker, the court replaced this with an objective test to be determined by the court itself. In other words, the court had to decide whether a reasonable doctor, exercising reasonable care and skill, would have acted in that way given the available material. So if a court decided that a practitioner was acting unreasonably, the practitioner would be liable even if he or she followed a practice accepted as proper at that time by the medical profession. In Rogers v Whitaker, the case turned specifically on a practitioner’s failure to warn of the risks involved in undertaking treatment. A later case, Naxakis v Western General Hospital took the objective test even further. 6 Naxakis extended the court-determined objective test to negligent diagnosis and treatment. This case involved a schoolboy who had been hit on the head with a school bag in a fight with another child. The victim was treated in hospital and sent home, only to collapse a couple of days later. He was then found to have a major intracranial bleed from a burst aneurysm. The bursting of the aneurysm caused permanent impairment. Gabriele Charotte, Australian Financial Review. 5. Available at http://oxcheps.new.ox.ac.uk/casebook/Resources/BOLAMV_1%20DOC.pdf 6. [1999] HCA 22 available at http://www.austlii.edu.au/au/cases/cth/HCA/1999/22.html 2 HOT TOPICS 64 > Health and the Law
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