Australia: Health Alert: 28 May 2012

Last Updated: 7 June 2012
Article by Michael Regos


New South Wales

Peden v Ferguson [2012] NSWSC 492

James Peden (plaintiff) initiated proceedings against Dr Michael Ferguson (defendant), a general practitioner, alleging negligence for failing to diagnose him with sacral chordoma during a consultation on 18 September 2007 (the relevant consultation).

Most issues were resolved by agreement. The remaining issue was whether the plaintiff had complained of altered sensation and feelings of electric shocks in his legs during the relevant consultation. The defendant had not documented this alleged complaint but only the complaint of lower back pain in the coccyx, sacroillial joint pain and low-range tinnitus.

The plaintiff relied on his recollection and his diaries, although they did not always match. The relevant consultation was the only one of many doctor consultations that the plaintiff purported to remember well. He claimed to write diary entries straight after consultations, but did not raise his concerns in his diary with his specialist following the relevant consultation. Some notes had been cut out, entries on the same date were sometimes in different coloured pen and a page was missing.

The defendant relied on his clinical notes and recollection. He made concessions about his lack of recollection and poor quality of some notes. The court accepted that the plaintiff complained of the matters recorded and that he did not complain of significant matters that were not recorded. At the time the medical records were made, the defendant had no interest in recording anything other than what occurred. The defendant's evidence was preferred.

Judgment was given in favour of the defendant.

New South Wales. Medical Tribunal

Health Care Complaints Commission v Dr Roland Von Marburg [2012] NSWMT 5 (8 May 2012)

The Health Care Complaints Commission (applicant) brought complaints before the Tribunal that Dr Von Marburg (respondent), an ear, nose, throat, head and neck surgeon, was guilty of unsatisfactory professional conduct and professional misconduct under the Health Practitioner Regulation National Law (NSW) No 86a.

The applicant alleged that over several months the respondent had self-administered a Schedule 8 drug of addiction not for the purposes of medical treatment, had failed to keep a drug register recording receipt, supply and administration, had destroyed a Schedule 8 drug of addiction in contravention of the law and had falsely stated that he had not selfadministered it.

The applicant also alleged that the respondent failed to make proper records regarding certain patients and administered pethidine to patients in lesser quantities to retain drugs for his own recreational use. The respondent initially denied his professional misconduct when questioned by the Pharmaceutical Services Branch, but conceded to the allegations in the Tribunal.

The Tribunal was satisfied that the doctor had engaged in serious professional misconduct. It ordered that the respondent must not prescribe, possess, supply, administer, handle or dispense any drug of addiction. Furthermore, he could not selfadminister drugs in Schedule 4 or 8 of the NSW Poisons List, narcotic derivatives, or nonprescription compound analgesics or cold medications. If he was prescribed these drugs, he had to report to the Medical Council. He also had to attend a psychiatrist, counsellor and general practitioner for treatment.


Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors [2012] VSCA 191 (11 May 2012)

Trade and commerce – Trade practices – Misleading or deceptive conduct – Fair Trading Act 1999 (Vic) (Fair Trading Act) s 9(1) – Consumer protection – Respondents advertised alternative, complementary cancer treatments on website – Whether misleading and deceptive – Whether merely permissible expression of opinion – Whether diagnostic methods and treatments described on website had conventional scientific support – Whether website represented diagnostic methods and treatments had conventional scientific support – Appeal allowed. Human rights – Charter of Human Rights and Responsibilities (Vic) s 15, s 32(1), s 7(2) – Freedom of expression – Freedom of speech – Interpretation of Fair Trading Act s 9(1) – Relationship between Charter and Fair Trading Act s 9(1) – Whether the provision needed to be read to include mens rea requirement – Purpose of the provision – Consumer protection – Charter did not import mens rea requirement

"The four respondents (collectively, "Operation Smile") operate the "Hope Clinic", which they describe as a complementary medicine centre specialising in the treatment of cancer. At the relevant time Operation Smile's website,, listed and described the treatments offered at the Hope Clinic and contained statements relating, inter alia, to the efficacy of these treatments. The appellant, the Director of Consumer Affairs Victoria (the Director), alleged that by making these statements Operation Smile engaged in misleading or deceptive conduct in trade or commerce contrary to s 9(1) of the Fair Trading Act. In summary, the Director's claim was that the statements falsely represented that the treatments offered by Operation Smile (1) were effective in treating cancer and (2) had scientific support. Operation Smile admitted making the statements but denied that they were misleading or deceptive."



National Health Amendment (Pharmaceutical Benefits Scheme) Bill 2012 - House of Representatives second reading speech on 23 May 2012.

National Health (Listed drugs on F1 or F2) Amendment Determination 2012 (No. 3) (No. PB 30 of 2012) - F2012L01074 " PB 30 of 2012 as made

National Health (Epworth Eastern Private Hospital Paperless Prescribing and Claiming Trial) Special Arrangement 2012 (No. PB 25 of 2012) - F2012L01052 " PB 25 of 2012 as made

Private Health Insurance (Incentives) Rules 2012 - F2012L01055 " as made

Private Health Insurance (Data Provision) Rules 2012 - F2012L01053 " as made

Private Health Insurance (Health Insurance Business) Amendment Rules 2012 - F2012L01051 " as made

Private Health Insurance (Complying Product) Amendment Rules 2012 (No. 4) - F2012L01050 " as made

National Health (Multiple Hospitals Paperless Claiming Trial) Special Arrangement 2012 (No. PB 26 of 2012)

New South Wales

Health Services Amendment (National Health Reform Agreement) Bill 2012 - Second reading 23 May 2012

Northern Territory

Health Practitioner (National Uniform Legislation) Implementation Act 2012 (NT) No. 17 (NT) was assented to on 22 May 2012 - (Not online)


Health Legislation (Health Practitioner Regulation National Law) Amendment Bill 2012 - introduced 17 May 2012

South Australia

17 May 2012 - National Health Funding Pool Administration (South Australia) Bill 2012 - House of Assembly - Introduced and read a first time

17 May 2012 - Health Practitioner Regulation National Law (South Australia) (Miscellaneous) Amendment Bill 2012 - House of Assembly - Introduced and read a first time


22 May 2012 - Health (Commonwealth State Funding Arrangements) Bill 2012 - Introduced


Australia. Department of Health & Ageing

Media releases

  • 25 May 2012 - MedicineWise Award Winners - Programs and services which are improving the use of medicines in contexts ranging from Aboriginal health to pregnancy have been recognised with National MedicineWise Awards.
  • 24 May 2012 - Bulk billing rates at record highs - Bulk billing rates reached a record high in the March quarter, with 81.2% of General Practitioner (GP) services bulk billed.
  • 18 May 2012 - $4.3 Million More for Home and Community Care in Tasmania - Older Tasmanians will receive more support to stay in their homes thanks to a $4.3 million boost to the Home and Community Care Program
  • 18 May 2012 - $50 million for Medicare Locals to help rollout eHealth records - Health Minister Tanya Plibersek has announced $50 million over two years will be made available to Medicare Locals – networks that support frontline health providers – to assist GPs and other health care providers to adopt and use the Federal Government's new eHealth records system.

Private health insurance circular - PHI 35/12 Private Health Insurance (Complying Product) Amendment Rules 2012 (No.3)

National Physical Activity Recommendations for Children 0-5 Years

National Physical Activity Recommendations for Children 0-5 Years: Tips and Ideas

Australia. Therapeutic Goods Administration (TGA)

25 May 2012 - Deactivation of superseded herbal ingredient names - Deactivation of superseded herbal ingredient names will take place on 28 and 29 May 2012.

24 May 2012 - Better information on medicine labels - have your say - The TGA has released a consultation paper that explores new ways of helping consumers better understand information on medicine labels and packaging.

23 May 2012 - RASML updates 5 & 6: Submissions and TGA response to submissions - Version 3.0.

23 May 2012 - Information about weight loss product Undoit - The sponsor of the product Undoit AUST L 193428 has cancelled the product's listing on the Australian Register of Therapeutic Goods.

Australia. Private Health Insurance Administration Council

Circular 12/11 - 23 May 2012 - Industry Education Seminar - Registration is Open

Statistical Release - Trends - 21 May 2012 - Statistical Trends Release for March 2012

Circular 12/10 - 18 May 2012 - Standard Operating Procedure – Investigation of a Private Health

Australia. Psychology Board of Australia

23 May 2012 - The Psychology Board of Australia issues guidance on when to be registered

23 May 2012 - First national data on approved psychology supervisors in Australia released

Australia. Medical Radiation Practice Board of Australia

24 May 2012 - The Board has released an update on Supervised Practice Arrangements for Qld Probationary Practitioners

Australian Institute of Health & Welfare

25 May 2012 - Child dental health survey Australia 2007: 30-year trends in child oral health - Media release

Australia. National Health & Medical Research Council

Research Tracker – 18 May 2012 edition

Australian Capital Territory. Department of Health

Media releases

New South Wales. Ministry of Health

Media releases

Queensland. Department of Health

Media releases

South Australia. Department of Health

23 May 2012 - HealthChat Phone-in A Ringing Success

Victoria. Department of Health

Media releases

Health Victoria. May 2012 - Read latest edition

Western Australia. Department of Health

Media releases

New Zealand. Ministry of Health

24 May 2012 - Tatau Niho Maori: Oral Health of Maori (Spinning Wheel) - Tatau Niho Maori: Oral health of Maori 2009 is a spinning wheel that provides selected indicators from the New Zealand Oral Health Survey 2009 for Maori and non-Maori. Read more

24 May 2012 - Statement of Intent 2012/13 to 2014/15: Ministry of Health - Identifies key outcomes for the health system and the Ministry itself: New Zealanders live longer, healthier and more independent lives, the health system is cost-effective and supports a productive economy. Read more

23 May 2012 - A Prescription for Good Health: Green prescriptions in action - In this booklet we tell the stories of some of the people for whom a Green Prescription has improved not only their health but that of friends, family and in many cases their wider community. Read more

United Kingdom. Department of Health

Macmillan and the Ramblers pledge to get people walking - Macmillan Cancer Support and the Ramblers have announced a new joint Responsibility Deal pledge that should see a significant increase in the numbers of people who are active. Read more ?– Macmillan and the Ramblers pledge to get people walking

Views sought on detailed proposals to secure shared decision-making and choice for patients - Detailed proposals to secure genuinely shared decision-making for patients have been published today. The Department of Health is consulting further on these detailed proposals. Read more ?– Views sought on detailed proposals to secure shared decision-making and choice for patients

Responsibility Deal network chair blogs about physical inactivity: the silent killer in our workplace - Fred Turok, Chair of the Government's Public Health Responsibility Deal physical activity network, and Chair of the Fitness Industry Association, has today challenged all businesses to do more to encourage more activity. Read more ?– Responsibility Deal network chair blogs about physical inactivity: the silent killer in our workplace

Information strategy to give people more control over their care - The Department has today published its information strategy – The power of information – which sets a 10-year framework for transforming information for the National Health Service (NHS), public health and social care. Read more ?– Information strategy to give people more control over their care

Heatwave Plan for England 2012 published - The Heatwave Plan and accompanying guidance is intended to raise public and professional awareness on how to prepare in case of severe hot weather and potential heatwaves this summer. Read more ?– Heatwave Plan for England 2012 published

Canada. Health Canada

22 May 2012 - Harper Government leads an international roundtable on mental health

21 May 2012 - Harper Government supports universal health care and advances mental health at the World Health Assembly

United States of America. Department of Health & Human Services (HHS)

22 May 2012 - HHS launches national campaign to educate older adults on registering as organ donors - An effort to educate adults 50 and older about the importance of registering to be organ, eye and tissue donors was launched today in observance of Older Americans Month. The campaign was developed by the Health Resources and Services Administration, in partnership with the Administration for Community Living's Administration on Aging and the National Institutes of Health's National Institute on Aging.

Australian Medical Association (AMA)

25 May 2012 - Big Tobacco condemned with Global Coffin Nail Award - The 2012 Global Coffin Nail Award was today presented to the Big Tobacco industry for its desperate, devious and dishonest tactics in opposing the introduction of plain packaging for tobacco products. The Award – presented by the AMA, the Australian Council on Smoking and Health (ACOSH), and Action on Smoking and Health (ASH) Australia – was announced at the AMA National Conference in Melbourne. No representative from Big Tobacco was in attendance to accept the Award.

25 May 2012 - Federal Government honoured for Global Leadership in Tobacco Control - The Federal Government was today presented with a Global Leadership Award by three of Australia's leading public health organisations for outstanding national and international action and leadership in tobacco control. The Award – presented by the AMA, the ACOSH and ASH Australia – was accepted on behalf of the Government by Health Minister, Tanya Plibersek, at the AMA National Conference in Melbourne.

British Medical Association (BMA)

23 May 2012 - Work Capability Assessments harm patients and should be scrapped, say GPs - Family doctors at the annual GP conference being held today in Liverpool have called for an end to the work capability assessment because of the harm it does to vulnerable patients. The doctors, who represent GPs from across the UK, say it should be replaced with a more vigorous and safe process which takes into account the needs of long term sick and disabled patients.

22 May 2012 - "Ordinary GPs" must not be cut out of involvement in NHS reforms, warns GP leader - The development of Clinical Commissioning Groups is happening without the involvement of many ordinary GPs, the leader of the UK's GPs warned in his speech to the annual GPs' conference.

21 May 2012 - Government Information Strategy contains improvements for patients, though care will be needed to ensure records remain secure, says BMA - The launch of the government's Information Strategy for health and social care contains positive improvements that should benefit patients, but it would need to be carefully implemented so it didn't jeopardise patient confidentiality, the BMA said today.

American Medical Association

Media Releases

Canadian Medical Association

24 May 2012 - Eight groups, one message: restore health coverage for refugees

23 May 2012 - Federal government slashes health coverage for refugees

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