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

Health Alert - 9 May 2011
Last Updated: 9 May 2011
Article by Heather Wellington

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 Piper Health Team



R v Patel; Ex parte Attorney-General (Qld)  [2011] QCA 081

This Queensland Court of Appeal decision concerned an appeal from two seven year prison sentences imposed on a doctor for surgery which was held to be unnecessary and inappropriate and to amount to manslaughter.  The surgery had been performed adequately and with the patient's consent.

The doctor's appeal grounds concerned construction of the criminal code, admissibility of evidence and an argument that the prosecution's change of case from negligent performance of surgery to negligent decision to perform surgery.

The Court dismissed the appeal, holding that the primary change in the prosecution's pleadings was to narrow the allegations against the doctor, rather than to plead a different case, and that evidence submitted was relevant to both pleaded cases.

The Attorney General also brought an appeal regarding the current seven year sentences imposed. Its appeal focussed on the fact that the doctor had had an order from Orgeon, USA restricting his performance of complicated surgery in that state without a second opinion. He had not disclosed the order to Queensland Health or the Hospital.  That appeal was also dismissed, the court finding that the sentences imposed were lawful and appropriate.

New South Wales

Lucire v Health Care Complaints Commission [2011] NSWCA 99

This New South Wales Court of Appeal decision concerned an appeal from the Medical Tribunal where the conduct of the appellant psychiatrist was found to constitute unsatisfactory professional conduct. The appellant was found not guilty of professional misconduct. The Tribunal imposed conditions on the appellant's medical registration that had the effect of suspension or deregistration. The Tribunal did not allow submissions in relation to the appropriate conditions or orders. The appellant had treated a patient in the weeks prior to a psychotic attack which resulted in the death of the patient's family members.

The appellant appealed on the basis that she was not afforded procedural fairness and the Tribunal made orders beyond its power.

The Court held the appellant was not afforded procedural fairness as a result of the preclusion of a reasonable opportunity to make submissions in relation to appropriate orders. Conditions on registration that have the effect of suspension or deregistration cannot be imposed in the absence of a finding of professional misconduct. As such, the Tribunal's orders were set aside. The court determined it would hear submissions and make appropriate orders rather than remit the matter back to the Tribunal for determination.

Western Australia. State Administrative Tribunal

[2011] WASAT 69 21/4/2011 MEDICAL BOARD OF WESTERN AUSTRALIA and W [2011] WASAT 69

New Zealand. Health & Disability Commissioner

09HDC01783 Rest Home - Palliative care during norovirus outbreak- 28 March 2011



Private Health Insurance (Complying Product) Amendment Rules 2011 (No. 3) - F2011L00693 " as made


Australia. Department of Health & Ageing

Media releases

06 May 2011- Parap to Benefit from Improved Access to Health Services-People living in Parap can look forward to better access to health care after it was announced that Blue Sun Dental will receive $221,778 of funding under round five of the Australian Government's National Rural and Remote Health Infrastructure Program (NRRHIP).

05 May 2011- 134 Mental Health Beds for Regional Queensland-Patients across regional Queensland will benefit from 134 new mental health beds thanks to a $75 million injection from the Gillard Government delivered through the 2011-12 Budget.

05 May 2011- Major New Health Investments for Rockhampton and Region-Patients from Rockhampton and surrounding regions will continue to see the benefits from national health reform with a number of new multi-million dollar health infrastructure projects announced today by the Australian Government through the 2011-12 Budget.

05 May 2011- New Day Treatment Centre for Townsville-Townsville and North Queensland residents will benefit from national health reform with today's announcement of a $13.75 million investment in local hospital and mental health services by the Gillard Government.

04 May 2011- $150 Million Supercharge for NT Health Infrastructure -Patients across the Territory will continue to benefit from national health reform through a huge $150 million investment into health and hospital infrastructure, including a new Palmerston hospital, announced in the lead-up to 2011-12 Budget.

04 May 2011- $480,000 of New Funding to Help Close the Gap in Northern Qld -Warren Snowdon, the Minister for Indigenous Health has visited the Stagpole Street Drug and Rehabilitation Unit in Townsville to announce nearly $480,000 in new funding to the Congress Community Development Education Unit Ltd (CCDEU).

04 May 2011- First Sod Turned on Gunnedah GP Super Clinic-The community of Gunnedah and surrounding regions will soon have improved coordinated healthcare with the official sod turning commencing construction work on the $4.3 million Gunnedah GP Super Clinic.

04 May 2011- Tamworth Hospital Redevelopment -Residents of Tamworth will benefit from national health reform with today's announcement that the Gillard Government will be the majority funding partner for the $220 million major redevelopment and expansion of Tamworth Hospital.

04 May 2011- TGA Launches New Website-The Australian community's access to authoritative information about the safety of medicines and medical devices will be greatly enhanced with the launch today of a revamped Therapeutic Goods Administration (TGA) website.

03 May 2011- $65 Million Regional Cancer Centre Project for Albury -Albury Wodonga patients will benefit further from national health reform with the announcement that the Australian Government will fund a $65 million integrated regional cancer centre project through the 2011-12 Budget.

03 May 2011- Growing Veggies Good for Growing Minds - Next Round of Funding for Kitchen Gardens Opens-Growing ripe tomatoes, fresh green beans, sweet golden corn and educating young minds on food and healthy eating habits are just some of the components of an innovative Australian Government funded program designed to tackle childhood obesity.

03 May 2011- More Doctors and Nurses to be trained in Western Sydney-The Australian Government will deliver more doctors and nurses to Western Sydney – one of the fastest growing population centres in the country – with the completion of the Blacktown Hospital Clinical School Research and Education Centre.

Private Health Insurance Circular - PHI 30/11 - Private Health Insurer Code Changes

Aged care - 02 May 2011 - Release of a Virtual Visiting Resource Kit.

Australia. Private Health Insurance Administration Council

Circular - 11/08 04 May 11 Reappointment of Council Members CURRENT EDITION 11/08

Australian Commission on Safety & Quality in Health Care

On the Radar - Issue 38

Australia. Therapeutic Goods Administration

5 May 2011 - Therapeutic Goods Administration - new website - On 4 May the TGA launched its new corporate website.

4 May 2011 - TGA launches new website -Media release from the Hon Catherine King MP

29 April 2011 - Natural Vigra VIAGRA tablets - The TGA is aware that some Australian consumers may have purchased the product Natural Vigra VIAGRA Tablets over the internet. Natural Vigra VIAGRA Tablets have not been assessed by the TGA for quality, safety or efficacy as required under Australian legislation, and the place of manufacture is not approved by the TGA.

28 April 2011 - Prescription medicine BPR update newsletter, April 2011 - April 2011 issue of the Prescription Medicines Business Process Review newsletter

Australian Capital Territory. Department of Health

Media releases

Capital spending delivers $129.1 million to healthcare system Katy Gallagher, MLA May 3 2011

Cancer services a priority as Budget delivers more funding Katy Gallagher, MLA May 3 2011

Budget delivers $7.7 million for enhanced women and children's services Katy Gallagher, MLA May 3 2011

Budget delivers $85 million to meet growing demand for health services Katy Gallagher, MLA May 3 2011

New north side hospital Katy Gallagher, MLA May 3 2011

More doctors and nurses - $8.3 million to help meet demand for critical care services Katy Gallagher, MLA May 3 2011

Hospitals to get $17.4 million boost for acute care Katy Gallagher, MLA May 3 2011

$19.8 million for additional mental health services Katy Gallagher, MLA May 3 2011

$10.4 million to help reduce elective and specialty surgery waiting times Katy Gallagher, MLA May 3 2011

Increased efficiency, more beds, more clinical staff and more services Katy Gallagher, MLA April 29 2011

Liberals seek to short change the community Katy Gallagher, MLA April 28 2011

ACT Budget 2011 - 2012 (3 May 2011) - For all ACT Budget papers visit the ACT Treasury website. The link above takes you to Health budget media releases.

New South Wales. Department of Health

Media releases

Straight to work on devolving responsibility and accountability [05 May 2011]

NSW Government secures Tamworth Hospital Redevelopment [04 May 2011]

NSW Government calls for Cancer Centre in Albury pays off [03 May 2011]

Connecting Care (Severe Chronic Disease Management) Program

Policy directives

Organ Transplantation From Deceased Donors: Eligibility & Allocation Protocols PD2011_026 04/05/2011

Maternity - Tocolytic Agents for Threatened Preterm Labour Before 34 Weeks Gestation PD2011_025 04/05/2011

Children and Infants - Acute Management of Head Injury PD2011_024 04/05/2011

Information bulletin

Disability Access - Guidelines on the Implementation of Premises Standards IB2011_019 04/05/2011

Northern Territory. Department of Health

Media releases

Vaccination Reminder as Whooping Cough cases climb - Families and carers of young children are being urged to vaccinate against whooping cough (also known as pertussis) amid a large increase in cases nationwide over the past two years.

Kon Vatskalis - Record Health Funding for Quality Health Services - A record Health Budget this year will see increased funding and infrastructure upgrades to Territory hospitals, increased support to community services, and more initiatives to improve Indigenous health outcomes.

Issuing a Subpoena (Adobe PDF document - 26KB) - 2011 Information on issuing subpoenas within the Department of Health.

Queensland. Department of Health

Media releases

Partnership delivers more mental health services sooner for Hervey Bay locals

05/05/2011 Partnership delivers more mental health services sooner for Maryborough locals

05/05/2011 Partnership delivers more mental health services sooner for Sunshine Coast locals

05/05/2011 Partnership delivers more mental health services sooner for Toowoomba locals

05/05/2011 Partnership delivers more mental health services sooner for Rockhampton locals

05/05/2011 Partnership delivers more mental health services sooner for Bundaberg locals

Narangba Industrial Estate Health Impact Assessment

South Australia. Department of Health

Media releases

New children's Emergency Department at Lyell McEwin - Wednesday, 04 May 2011 - Children in the north now have their own Emergency Department at the Lyell McEwin Hospital. Read more...

Patient safety report released - Saturday, 30 April 2011 - The annual report which provides South Australians with detailed information about patient safety in our State's public health system has been published on the SA Health website. Read more...

Australian Hospital Statistics 2009-10 - Friday, 29 April 2011 - Health Minister John Hill has congratulated South Australian doctors, nurses and health workers for their outstanding performance over the last year, as demonstrated by the results of the Australian Hospital Statistics, 2009-10, an annual report from the Australian Institute of Health and Welfare. Read more...

Directive - Surgical Team Safety Checklist Policy

Victoria. Department of Health

Media releases

Minister unveils landmark health plan

Coalition Govt funds first step to delivering Monash Children's Hospital

Coalition Govt funds first step in Geelong Hospital expansion

Coalition Government funds $34.4 million boost for palliative care

Coalition Government building a healthier Victoria

Coalition funds investment in new Bendigo Hospital

Coalition funds 100 extra beds in Box Hill Hospital expansion

Coalition delivers on commitment to expand Frankston Hospital

Ballarat region a big winner in Coalition Government's 2011-12 Victorian Budget

340 more ambulance staff and halving membership fees

Victorian Budget 2011-12 - 3 May 2011 - The 2011-12 Budget was handed down by the Treasurer, Kim Wells MP, on Tuesday 3 May 2011.  Visit the Budget website for all the budget papers and media releases.

The Victorian Public Mental Health Caseload Management Standard 2011

Western Australia. Department of Health

5 May 2011 - Minister for Mental Health: Grant to provide long-term accommodation for residents with mental illness

2 May 2011 - Minister for Health: Hospitals hit Four Hour Rule Program targets ahead of time

2 May 2011 - Tobacco law changes up for discussion

04 May 2011 Morton Grant to provide long-term accommodation for residents with mental illness

03 May 2011 Grylls Boddington Health Centre opening

30 Apr 2011 Hames Hospitals hit Four Hour Rule Program targets ahead of time

United States. Department of Health & Human Services

Majority of U.S. hospitals meet all-hazards preparedness measures - More than 76 percent of hospitals participating in the National Hospital Preparedness Program (HPP) met 90 percent or more of all program measures for all-hazards preparedness in 2009, according to a report released today by the U.S. Department of Health and Human Services' Assistant Secretary for Preparedness and Response.

Interagency working group seeks input on proposed voluntary principles for marketing food to children - In an effort to combat childhood obesity – the most serious health crisis facing today's youth – a working group of four federal agencies today released for public comment a set of proposed voluntary principles that can be used by industry as a guide for marketing food to children.

Australian Medical Association

Territory alcohol and pornography signs must come down  - Today, 6 May 2011, The AMA supports the Central Land Council's calls for the removal of demeaning signs that detail alcohol and pornography bans in Northern Territory communities. The signs were erected as part of the Northern Territory intervention, and the Federal Government has determined the signs are no longer compulsory – but many of the signs are still in place. AMA President, Dr Andrew Pesce, and Vice President, Dr Steve Hambleton, visited the Territory last year and were given the very strong message from Aboriginal community leaders that the signs had to come down.

New research backs AMA push to ban energy drinks - Yesterday, 5 May 2011 - New research that shows that young people are attracted to alcoholic energy drinks because they allow them to keep drinking for longer periods adds weight to the AMA's push for a ban on energy drinks, especially pre-mixed alcoholic energy drinks. AMA Vice President, Dr Steve Hambleton, said today that the research from the University of Wollongong Centre for Health Initiatives shows that a significant proportion of 12-to-17-year olds are more likely to drink alcoholic drinks if they contain caffeine or guarana.

Health Professionals and Support Services Award 2010 Guide - Tuesday, 3 May 2011- Under the Shared Industry Assistance Project the AMA received a grant from the Fair Work Ombudsman to develop educational materials relating to the Health Professional and Support Services Award 2010. The Health Professionals and Support Services Award 2010 covers employees working in private industry in the health sector. Key groups covered by the Award include medical and dental practices and many allied health professionals. The Award does not cover medical practitioners and nurses; there are separate modern awards which cover them. As part of the project the AMA has produced a Guide to the Award. This is available for free to all employers and employees.

Male doctors more likely to be disciplined for misconduct - Sunday, 1 May 2011 - MJA release - Male doctors are four times more likely than female doctors to be disciplined for misconduct, an analysis of professional discipline cases published in the Medical Journal of Australia has found. Obstetrician-gynaecologists and psychiatrists had the highest rate of disciplinary action, followed by general practitioners.

Any alcohol consumption increases cancer risk - Sunday, 1 May 2011 - MJA release - Any level of alcohol use is a cause of cancer and there is no evidence that there is a safe threshold of alcohol consumption to avoid cancer, according to Cancer Council Australia's position statement published in the Medical Journal of Australia.

US-style anti-fraud laws needed for pharmaceutical and health care industry - Sunday, 1 May 2011, - MJA release - Australia needs anti-false claims legislation as exists in the US to provide financial incentives to whistleblowers as a health policy priority, according to an article in the Medical Journal of Australia. Lead author Assoc Prof Faunce, from the College of Medicine, Biology and Environment at the Australian National University, said Australia would greatly benefit from US style anti-fraud and anti-competitive laws for the pharmaceutical and health care sector.

Permanent flexible physician training posts are lacking - Sunday, 1 May 2011, - MJA media - Pilot flexible training positions should be introduced to help junior doctors balance work and family commitments, according to an article in the Medical Journal of Australia. More women than men are graduating as doctors, and more doctors are raising children in their training years, but permanent flexible training positions across the medical subspecialties are lacking, says Dr Suzanne Mahady, an advanced trainee at Westmead Hospital, Sydney.

Debate over benefits of keyhole surgery for colorectal cancer - Sunday, 1 May 2011 - MJA release - Almost a quarter of resections for colorectal cancer are done laparascopically in Australia, a study in the latest edition of the Medical Journal of Australia shows.

Public hospitals - not much bang for the big bucks - Friday, 29 April 2011- AMA President, Dr Andrew Pesce, said today that the Government's spending on public hospitals has delivered a very small return on a huge investment over four years, with the hospitals effectively being held in a holding pattern. Dr Pesce said that the latest hospitals report from the Australian Institute of Health and Welfare (AIHW) shows that on all the basic measures there has been no real change in the capacity of our public hospitals to meet demand. "There has not been much bang for the extra bucks spent on our hospitals," Dr Pesce said.

Medicines Australia

The news that Australia's pharmaceutical exports have started to fall is disappointing, but not completely unexpected. After growing over a number of years to around $4 billion since September 2007, Australia's annual pharmaceutical exports have stabilised around that level. They have seen little growth since that time and most recently have recorded their first fall below $4 billion since May 2009.  If this trend were to continue it would confirm a warning Medicines Australia made several years ago about the fragility of Australia's pharmaceutical export performance. The pharmaceutical export success Australia enjoys today has been built on investments made over the previous 20 years under the impetus of various industry incentive programs...Read more

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This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

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