Torts: Cases and Commentary - LexisNexis

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4.20 Normative causation• Adams by her next friend O'Grady v State of New South Wales [2008]NSWSC 1257. Alleged breach of duty by State in providing plaintiff withaccess to knife with which she stabbed and killed a teacher. As to causationsee [113]ff.Chapter 55.19 Ethical framework• Incidental to the discussion regarding duty to disclose error are recent movestowards a statutory framework for ‘mandatory reporting’. For example,Section 71A of the Medical Practice Act 1992 (NSW) introduced a concept of“reportable misconduct”, placing an obligation on doctors (after 1 October2008) to report certain types of misconduct to the New South Wales MedicalBoard.o71A Reportable misconduct: (1) A registered medical practitionercommits reportable misconduct in the following circumstances: (a) ifhe or she practises medicine while intoxicated by drugs (whetherlawfully or unlawfully administered) or alcohol, (b) if he or shepractises medicine in a manner that constitutes a flagrant departurefrom accepted standards of professional practice or competence andrisks harm to some other person, (c) if he or she engages in sexualmisconduct in connection with the practice of medicine. (2) Aregistered medical practitioner who believes, or ought reasonably tobelieve, that some other registered medical practitioner has committedreportable misconduct must, as soon as practicable, report the conductto the Board.• Guidelines issued in August 2008 by the New South Wales Medical Boardprovide some commentary on subsection (b), indicating that the Boardconsiders a flagrant departure from accepted standards involves a very highdegree of departure from such standards. Conduct which is merely careless ornegligent (in the sense that it fails to meet the standards of care owed topatients) will generally not be flagrant. Whilst it is possible for reasonablepractitioners to disagree about whether a particular practice is or is notnegligent, a flagrant departure is likely to be one which is both serious andobvious to any reasonable practitioner. This is particularly likely to be the casewhere another practitioner engages in reckless, unethical, wilful or criminalbehaviour. The reportable misconduct must pose a risk of harm to some otherperson as well as constituting a flagrant departure from accepted standards ofprofessional practice or competence, before mandatory reporting is required.The Guideline can be found on the New South Wales Medical Board websitehttp://www.nswmb.org.au under the menu item ‘news & updates’.• Similar legislation appears now in Queensland.
• Similar ethical obligations are reflected in 6.3.4 and 6.3.5 of Good MedicalPractice: A Code of Conduct for Doctors in Australia which will be consideredfor adoption or endorsement by the State and Territory medical boards andthat the new Medical Board of Australia will adopt the Code.http://goodmedicalpractice.org.au/wp-content/downloads/Final%20Code.pdfChapter 66.1 Non-Delegable duties – Introduction• Transfield Services (Australia) v Hall; Hall v QBE Insurance (Australia)[2008] NSWCA 294. A non-medical decision which in part discusses whetherthere is a general doctrine in Australian law that a person has a non-delegableduty to ensure reasonable care taken by an independent contractor employedto engage in an extra-hazardous or inherently dangerous activity; whetherthere is scope for extending concept of non-delegable duties beyond existingcategories and the relevance of factors of control and vulnerability to findingof non-delegable duty.Chapter 77.16 Elective procedures• Ormsby v Stewart & Ors [2009] QSC 200. Intraocular lens replacementsurgery. Breach of duty & causation not found.7.20 Clinically indicated procedures• Rooke v Minister for Health [2009] WASCA 27 on appeal from Rooke vMinister for Health [2008] WADC 6. Post-operative sensitivity - Dupuytren'scontracture. Breach of duty & causation not found.7.32 Breach of duty in informed consent cases – differing riskselsewhere• G & C v Down [2008] SADC 135. A decision concerning failure to warn ofthe risks of failure of a sterilisation procedure. At [140] ff the court addressesdifferences between a surgeon's own rate and the general published failure
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