Australia: Health Related Critical Judgments, Legislation, Press Releases and News Items

Health Alert 29 November 2010
Last Updated: 29 November 2010
Article by Michael Regos

29 November 2010

Welcome to this week's edition of Health Alert.  The Health Alert is transmitted on Monday of each week (unless there is a public holiday on Monday).

Health Alert is a summary of the critical judgments, legislation, press releases and news items which have come to our attention each week.  Many of the summaries will contain a hyperlink.

If an item is of special interest, we may insert commentary into the body of Health Alert.  However in general, Health Alert is a quick and effective means of ensuring that you are aware of significant recent changes with little or no commentary from us.

If you would like to include a colleague or contact on our distribution list, or be removed from the list and not receive further issues from us, please contact Legal Updates at with the relevant contact details.

The DLA Phillips Fox Health Team


New South Wales

Mundine v Brown (No 6) [2010] NSWSC 1285

DEFAMATION – defence of common law qualified privilege – where matter complained of published in newspaper circulating in Clarence Valley – where plaintiff not named in article – whether publication to entire readership of paper or only those persons who identified the plaintiff from extrinsic facts – held publication to all recipients – defence of qualified privilege rejected – DAMAGES – hurt to feelings and loss of reputation – plaintiff employed as Aboriginal mental health worker – defamatory imputation that she was incompetent as such – where plaintiff the only Aboriginal mental health worker in Clarence Valley – defamation substantial – plaintiff awarded $60,000 – no aggravated damages.

Ng v NSW Health Care Complaints Commission [2010] NSWSC 1220

PHARMACIST – Deregistration – Continuing unfitness – Whether remorseful – Significance of finding of dishonesty – Requirements of procedural fairness – Whether breach of rule in Brown v Dunn - Error of law – Mistake of fact – Whether Supreme Court should hear and determine consequential orders when quashed – Remit to Tribunal for determination.

This case concerns a review of a decision by the Pharmacy Tribunal of New South Wales ('Tribunal') of the conduct of a registered pharmacist.  The Tribunal found the pharmacist guilty of professional misconduct and of having been convicted of offences in New South Wales which rendered him unfit in the public interest to be registered as a pharmacist.  His skill, judgment and care were found to be significantly below the standard reasonably expected of a pharmacist of equivalent experience.  Allegations included failing to register drugs, inappropriately suppling and dispensing drugs contrary to legislative provisions and general standards, and making false or misleading entries in the pharmacy's computer dispensing records.  The pharmacist's registration was cancelled and the Tribunal ordered he was not to be re-registered and an application for review could not be made until after the expiration of two years.

The pharmacist appealed the decision in relation to a point of law or the exercise by the Tribunal of its disciplinary powers, pursuant to section 92 of the Pharmacy Practice Act 2006 (NSW).  Issues included that the Tribunal failed to address the question whether it was probable that the pharmacist was 'permanently unfit to practice', did not consider or inadequately considered the prospects of the pharmacist not re-offending, and erred in determining it was inappropriate to give detailed consideration of evidence of two exert witnesses.

Judge Adams, allowing the appeal, held that despite having misgivings due to the admitted serious shortcomings shown by the pharmacist, the Tribunal's orders including that of deregistration must be quashed and remitted to the Tribunal for reconsideration.  This was partially on the basis that the Tribunal's rejection of the truth of the pharmacist's evidence was affected by a denial of procedural fairness, which amounted to an error of law.

New Zealand. Health & Disability Commissioner

10HDC00253 General Practitioner - Missed diagnosis of advanced colorectal cancer.15 October 2010


Caroline Shaw v Broadbent  - [2010] QSC 433

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF PERIOD – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF A DECISIVE CHARACTER – GENERALLY – where applicant claims that she suffered injuries following surgery performed on her by the first respondent at the second respondent hospital – where applicant commenced proceedings beyond the limitation period – where applicant applies to extend the limitation period for the commencement of proceedings – where application is opposed by the first respondent on the basis that the applicant's material fact of a decisive character relating to her right of action was within her knowledge or means of knowledge more than one year prior to her commencement of proceedings – where application is opposed by the second respondent on the basis that the applicant is unable to establish a right of action – where application is further opposed by the second respondent on the basis of prejudice – whether the limitation period should be extended

South Australia

Taylor v Medical Board of South Australia — [2010] SASC 308;

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - LICENCES AND REGISTRATION - APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION. Appeal pursuant to s 65 of the Medical Practice Act 2004 - appeal against decision of the respondent to refuse reinstatement of the appellant's registration as a medical practitioner. PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - RESTORATION TO REGISTER. Appellant was registered as a practitioner with a limited registration for the purpose of undertaking medical internship - registration required at all stages of internship - registration lapsed before internship completed - internship took longer than usual due to appellant's absences from work and requirement to repeat rotation - absences from work caused by physical and psychiatric health issues - application was made for reinstatement on register, in order to complete internship - application was refused - whether decision-maker was biased - whether appellant is "medically fit" to continue internship - whether appellant suffers from Asperger's Syndrome - whether decision-maker erred in its consideration of the evidence - whether decision-maker discriminated against the appellant - whether application wrongly refused. Held: No demonstrable error in the reasoning of the respondent - the respondent's decision was available on the evidence - appeal dismissed.

Wilks v Medical Board of South Australia — [2010] SASC 287

PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - LICENCES AND REGISTRATION - CHARACTER. PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - LICENCES AND REGISTRATION - APPEALS AND APPLICATIONS FOR ORDER DIRECTING REGISTRATION. PROFESSIONS AND TRADES - HEALTH CARE PROFESSIONALS - MEDICAL PRACTITIONERS - DISCIPLINARY PROCEEDINGS - PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT - GENERALLY. Appeal against refusal for registration as a medical practitioner in South Australia by the Medical Board of South Australia – appellant was subject to disciplinary proceedings in Victoria and registration cancelled in that State for unprofessional conduct – whether Medical Board of South Australia gave proper consideration to evidence – whether Medical Board proceeded on a misunderstanding of fact – whether Medical Board gave appropriate weight to certain matters – observations about public interest in doctor-patient relationship. Held: appeal dismissed – complaints are misconceived – approach of and findings made by Medical Board were justified.



PRACTICE AND PROCEDURE – Injunction – to restrain or require medical procedure – Parens patriae jurisdiction – unconscious patient following catastrophic brain stem haemorrhage resulting in irreversible coma. MEDICINE – Injunction to restrain or require medical procedure – Unconscious patient following catastrophic brain stem haemorrhage resulting in irrevocable coma.

This case concerns an application by the family of a patient to extend an injunction to prevent a tube inserted into the patient's trachea, to maintain his airways and facilitate his unassisted breathing, from being removed.  The patient had been unconscious following catastrophic brain stem haemorrhage resulting in a coma following a sudden collapse on Monday 11 October 2010.   Four specialist medical practitioners considered the patient's injury resulted in an irreversible coma, his only remaining brain stem function was spontaneous breathing and reflex coughing, ongoing and active intervention was futile and not in his best interests, and the removal of the tube was in his best interests.

Judge Dixon noted that a key issue was the parens patrie jurisdiction of the Court which is the power and duty to protect the persons and property of those unable to look after themselves.  In this case the patient was considered unable to protect himself because of his state of unconsciousness.

Judge Dixon held that on the evidence there was no basis for the Court to criticise the hospital's management of the patient, instead it had been proper and appropriate.  This included issues regarding the preservation of the patient's life and prospects.  The judge was not satisfied that continuing to intervene by injunctive relief would protect the best interests of the patient's health and welfare.  This was in relation to restraining the hospital and doctors discharging their duties and obligations to the patient's management and treatment.  The injunction was not extended.

Victoria. Coroners Court

Response - Inquest into the Death of Mr X

044106 Kara Lennah Compton (PDF 610KB)

This Coronial Inquest concerned the death of a 22 month old female on 2 February 2006 due to acute chronic respiratory failure.  Contributing factors included blood loss from dog bites and Down's syndrome.

The child suffered multiple medical problems since birth including hypothyroidism, problems with feeding and weight gain, ongoing respiratory problems with chronic lung disease of prematurity and recurrent respiratory tract infections.  At the time of death she was still receiving home oxygen treatment.

Whilst sleeping on 2 February 2006 the family dog entered the house and attacked her.  She was immediately attended to by her father and taken by ambulance to a hospital Emergency Department ('ED').  She was promptly assessed by the ED staff noting pallor, weak movement, but was able to open her eyes to voice. Blood pressure measurements were unsuccessful and a femoral pulse could not be identified.  An intraosseous ('IO') line was later successful.  Brachycardia then occurred, CPR was attempted, and many doses of adrenaline were administered. 

Coroner John Olle found that it was unlikely that the child's life could have been saved.  He noted that while all members provided dedicated professional care, the ED team were relatively inexperienced in IO access as were the paramedics with paediatric intravascular ('IV') insertion.  This highlighted the need for systemic improvements and training seminars. 

The Coroner's recommendations included that dogs be separated from infants and that the relevant bodies collaborate to ensure that parents and guardians are provided with the relevant literature.  He also recommended that ED staff attend a scenario based paediatric course to demystify IO procedures, while Ambulance Victoria should consider training non-MICA paramedics in paediatric IV insertion.



Health Insurance Amendment (Compliance) Bill 2010 - C2010B00265 - Health - A Bill for an Act to amend the Health Insurance Act 1973 and for related purposes.

National Health Amendment (Pharmaceutical Benefits Scheme) Act 2010 - C2010A00126 - Health - An Act to amend the National Health Act 1953, and for related purposes - assented to on 23/11/2010.

National Health (Pharmaceutical Benefits) Amendment Regulations 2010 (No. 5) - F2010L02953 - Health - These Regulations amend the National Health (Pharmaceutical Benefits) Regulations 1960 to give effect to changes made to the National Health Act 1953 by Schedule 4 to the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2010.

National Health (Pharmaceutical Benefits) Amendment Regulations 2010 (No. 4) - F2010L02950 - Health - These Regulations amend the National Health (Pharmaceutical Benefits) Regulations 1960 regarding provisions relevant to one drug, lercanidipine, on the Schedule, which lists brands of pharmaceutical items scheduled for staged statutory price reductions.

National Health (Pharmaceuticals and Vaccines - Cost Recovery) Amendment Regulations 2010 (No. 1) - F2010L02952 - Health - These Regulations amend the National Health (Pharmaceuticals and Vaccines - Cost Recovery) Regulations 2009 (the Regulations) relating to amendments made to the Act by Schedule 6 to the National Health Amendment (Pharmaceutical Benefits Scheme) Act 2010 by removing the term 'special pharmaceutical product' from the Regulations in line with this change.

Private Health Insurance (Insurer Obligations) Amendment Rules 2010 No. 1 - F2010L02886 - Health - These Rules amend the Private Health Insurance (Insurer Obligations) Rules 2009 to introduce a disclosure standard for private health insurers to advise the Private Health Insurance Administration Council of certain information which may pose a prudential risk.

Australian Capital Territory

Medicines, Poisons, and Therapeutic Goods Amendment Regulation (No. 5) 2010 No. 45 - commenced on 23 November 2010.

New South Wales

Public Health Bill 2010 - introduced into the Legislative Assembly on 24 November 2010.

Northern Territory

Public and Environmental Health Bill 2010 - introduced to LA on 24 November 2010.


Health Services Amendment Regulation (No. 2) 2010 No. 311 - commenced on 19 November 2010.


Public Health Amendment Bill 2010

Pharmacists Registration Amendment Bill 2010


Australia. Department of Health & Ageing

Media releases

25 November 2010 - $100 Million For Royal Hobart Hospital - The Australian Government and the Tasmanian Government have finalised an agreement to enable the construction of the Women's and Children's Precinct on the Royal Hobart Hospital site.

25 November 2010 - Patients to Benefit from New Primary Care Infrastructure Grants - Patients can expect to see big changes at their local GP clinics, thanks to $64.5 million in primary care infrastructure grants announced by the Australian Government on 25 November.

25 November 2010 - Registration, Accreditation and Support Processes For Overseas Doctors - The Minister for Health and Ageing, Nicola Roxon, has welcomed the commencement of the House of Representatives Standing Committee on Health and Ageing to work to explore current registration, accreditation and support processes for overseas-trained doctors.

24 November 2010 - Applications Now Open For Second Wave e-Health Projects -Hundreds of thousands more Australians will join the e-health revolution as a result of up to $55 million from the Australian Government now available for the next round of innovative e-health projects across the nation.

24 November 2010 - Better Private Health Insurance Information a Win for Consumers - The 10 million Australians who are covered by private hospital cover now have a better tool to call on when trying to work out which cover is best for them, with the launch of improvements to the web site

24 November 2010 - Widespread Support for Health Reform Welcomed - Over three-quarters of all Australians support the Australian Government's historic health reform agenda according to new statistics released on 24 November.

23 November 2010 - 42 More Schools to Help Promote Healthy Eating - Children at 42 schools around the country will be growing, harvesting, preparing and sharing fresh food and learning healthy eating habits as part of the latest round of the Stephanie Alexander Kitchen Garden National Program.

22 November 2010 - Anaesthetic training opportunities for rural and remote GPs - Increased funding for maternity training for doctors will enable general practitioners to complete procedural training in obstetrics and anaesthetics.

20 November 2010 - $23m in Local Grants Available for Healthy Community - The Australian Government is calling on local governments around Australia to apply for more than $23 million worth of Healthy Communities Grants.

19 November 2010 - Food and Health Dialogue Communique - The Australian Government Parliamentary Secretary for Health, Catherine King, has chaired the fifth meeting of the Food and Health Dialogue on 19 November.

Commonwealth response to The Hidden Toll: Suicide in Australia report  - The Australian Government has welcomed the report of the Senate Community Affairs Reference Committee, The Hidden Toll: Suicide in Australia.  Today, the Australian Government tabled its whole of government response to the Committee Report. Of the 42 recommendations in the Senate report the Government has already actioned six, has set in place initiatives to meet a further twenty and will progress or consider the remaining recommendations in consultation with relevant stakeholders. Read the Commonwealth's response.

Private Health Insurance Circulars

PHI 84/10 - Victorian Hospital in the Home Review 2009

PHI 83/10 - Hospital Information

PHI 82/10 - Review of Health Technology Assessment in Australia: Update on Implementation of Recommendation 12B-E

Aged care - 23 November 2010 - The 2008 Community Care Census

Australia. Private Health Insurance Administration Council

23 November 2010: PHIAC Annual Report 2009-10: CURRENT EDITION 10/20

Australia. Therapeutic Goods Administration

Request for Certificates, or notarised copies of TGA Licences and Certificates, in relation to the manufacture of therapeutic goods (form updated)

Portable blood glucose meters (updated)

Scheduling news (new)

Fact sheet: Revised scheduling arrangements from 1 July 2010 (new)

Flowchart: Summary of the scheduling process (new)

Revised medicines and chemicals scheduling arrangements (updated)

Consultation: Cost recovery impact statement for the regulation of biologicals (human cell and tissue therapy products) (new)

Australia. Private Health Insurance Ombudsman

24 November 2010 - Launch - Australia's leading independent source of information about private health insurance,, just got better - READ MORE

Australia. National Health & Medical Research Council

Loss of Australian medical research icon - Professor Frank Fenner - 23 NOVEMBER 2010 The National Health and Medical Research Council (NHMRC) is deeply saddened by the death of outstanding medical researcher Professor Frank Fenner at age 95 - 

» Read Full Notice

NHMRC grant recipients win Prime Minister's Science Prizes - 19 NOVEMBER 2010 - The NHMRC congratulates Professor John Shine of the Garvin Institute on his receipt of the 2010 Prime Minister's Science Award, for an outstanding achievement in science advancing human welfare or benefiting society. NHMRC also congratulates Benjamin Kile of the Walter and Eliza Hall Institute for Medical Research on his receipt of the 2010 Science Minister's Prize for Life Scientist of the Year in recognition of his outstanding early-career research. More information available at

Draft consensus-based clinical practice guideline for the management of volatile substance use (VSU)

Australian Institute of Health & Welfare

Use of health services for arthritis and osteoporosis - There is considerable variation in the type and extent of health services used and actions taken to manage the three conditions. While the management of osteoarthritis and rheumatoid arthritis is ... Published 26 November 2010.

Health of Australians with disability: health status and risk factors - This bulletin is the first in a series about health of Australians with disability. It examines how health problems affect health status of people with disability in Australia with a ... Published 25 November 2010.

Australia's mothers and babies 2008 - In 2008, 292,156 women gave birth to 296,925 babies in Australia. The increase in births continued, with 2,720 more births (0.9%) than reported in 2007. This is the second year ... Published 24 November 2010.

The coding workforce shortfall - Concern about the shortfall in the clinical coding workforce in Australia has been raised. This report quantifies the scope of the existing shortfall, provides ... Published 23 November 2010.

Australian Capital Territory. Department of Health

Media releases

Consumer Participation Celebration Katy Gallagher, MLA 25 November 2010

Minister launches Hands Across Canberra Foundation and web portal Katy Gallagher, MLA 23 November 2010

Minister Strengthening Healthy Partnerships at GP Connect 2010 Katy Gallagher, MLA 22 November 2010

New South Wales. Department of Health

Media release

Minister releases flagship report on the health of people of NSW [22 November 2010]

The health of the people of New South Wales - Report of the Chief Health Officer - Summary Report, 2010 - 22/11/2010

Policy directive

Critical Care Tertiary Referral Networks (Perinatal) PD2010_069 23/11/2010

Northern Territory. Department of Health & Families

New NT Families and Children Careers website

Local Hospital Network: Public Forums and Consultation Paper

Queensland. Department of Health

Media releases

24/11/2010 Pioneering program delivering Queenslanders more surgery and services

23/11/2010 Government releases blueprint for payroll fix

21/11/2010 Bligh Government launches $7.5 million Diabetes Action Plan

19/11/2010 Queensland hospitals on track

Ernst & Young Report - Review of Queensland Health's Payroll and Rostering Solutions

South Australia. Department of Health

Media releases

New ambulance station for Prospect - Monday, 22 November 2010 - A new ambulance station has opened in Prospect, the first of four new stations due to be completed within the next 12 months. Read more...

Celebrating excellence in health - Saturday, 20 November 2010 - More than 200 South Australian health professionals gathered last night to celebrate the achievements of their colleagues in the 2010 SA Health Awards. Read more...

Tasmania. Department of Health & Human Services

Media release

Radiology Leaps the Digital Divide Minister for Health 21 November 2010

Victoria. Department of Health

Program management circulars

Deceased clients legal status and case closure in CMI/ODS - July 2010 (PDF file 54KB)  - PMC06103

Registration of mental health clients in CMI/ODS - July 2010 (PDF file 55KB) - PMC06105

Recording admission detail in CMI/ODS - July 2010 (PDF file 53KB) - PMC06106

Recording case in CMI/ODS - July 2010 (PDF file 59KB) PMC080301

Recording contacts in CMI/ODS - July 2010 (PDF file 57KB) PMC06107

Mental health service contacts Data definitions - July 2010 (PDF file 129KB) (Appendix to Recording contacts in CMI/ODS) - PMC06107

Recording diagnoses in CMI/ODS - July 2010 (PDF file 59KB) - PMC06108

Recording Electro-convulsive therapy (ECT) on the CMI/ODS - July 2010 (PDF file 56KB) PMC080901

Subcentre maintenance in CMI/ODS - November 2010 (PDF file 58KB) PMC080302

Subcentre maintenance in CMI/ODS - Data Definitions - March 2008 (PDF file 92KB) PMC080

Western Australia. Department of Health

Media releases

24 November 2010 - Malaysian representative visits 'world class' WA Health licensing unit

23 November 2010 - Mixed findings in ADHD stimulant report

25 November 2010 Jacobs - New funding for mental health anti-stigma campaign

20 November 2010 Jacobs - Mental health inpatient services for new children's hospital

20 November 2010 Jacobs - Minister unveils new CT scanner for Esperance

20 November  2010 Jacobs - New regular oncology service for Esperance announced

Stimulant Regulatory Scheme – 2009 Annual Report (PDF 2MB)

New Zealand. Ministry of Health

25 November 2010: DHB Health Targets 2010/11Quarter One Results

25 November 2010: Interventions and Treatment for Problematic Use of Methamphetamine and other Amphetamine-Type Stimulants (ATS) - These guidelines have been developed for use across a wide range of settings for those working with people adversely affected by methamphetamine use.

25 November 2010: National Plan for Child Cancer Services in New Zealand - The National Plan for Child Cancer Services in New Zealand has been developed by the Ministry of Health and the National Health Board in conjunction with District Health Boards (DHBs) and the Paediatric Oncology Steering Group.

24 November 2010: Whānau Ora Integrated Services Delivery - The Whānau Ora Integrated Services Delivery further develops Te Toi Hauora-Nui by identifying those critical success factors in Māori health service delivery, but in the integrated service setting. The report looks specifically at six Māori health providers and their delivery of integrated services.

22 November 2010: The New Zealand Health Survey: Objectives and topic areas - August 2010

19 November 2010: Tobacco Use in New Zealand: Key Findings from the 2009 NZ Tobacco Use Survey

19 November 2010: Calculating Outcomes Potentially Sensitive to Nursing: A Literature Review

18 November 2010: Mental Health and Addiction Action Plan 2010

United Kingdom. Department of Health

Improving services for women and child victims of violence: the Department of Health Action Plan

EFA 2010/011: Self-harm associated with wardrobes

Confidentiality: NHS Code of Practice - supplementary guidance: public interest disclosures

CDO Update, December 2010

Progress report: evaluation of the national integrated care pilots

GP and Practice Team Bulletin, November 2010

Interventional radiology: guidance for service delivery - a report from the National Imaging Board

The Quarter, quarter 1, 2010/11

National statistics published by the Department of Health about the experience of black and minority ethnic patients: a consultation

Monthly situation reports, October 2010: Delayed transfers of care, A&E activity, cancelled operations and critical care bed capacity

Uptake of the seasonal influenza vaccine - letter from the Director of Immunisation

Australian Medical Association

AMA submission on Medicare Locals Discussion Paper 19 November 2010 - 2:15pm - The AMA this week lodged a submission in response to the Government's Medicare Locals Discussion Paper. AMA President, Dr Andrew Pesce, said today that the AMA believes that Medicare Locals may be able to add value to the primary health system, but they would never become the foundation. Dr Pesce said that General Practitioners are the foundation of the Australian health system.

Implementing electronic discharge summaries: the junior medical officer perspective 19 November 2010 - 5:00pm - The AMA Council of Doctors-in-Training has made a submission to the National e-Health Transition Authority on electronic discharge summaries. The paper examines, from the junior medical officer perspective, impediments to creating high-quality discharge summaries and presents solutions to the barriers identified.

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