ARTICLE
19 June 2012

Health Alert - 18 June 2012

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The alert includes judgments, legislation, reports, media releases and other publications from Australia and overseas.
Australia Food, Drugs, Healthcare, Life Sciences
Anthony Willis

JUDGMENTS

Australia. Federal Court of Australia

Swisse Vitamins Pty Ltd v The Complaints Resolution Panel [2012] FCA 536 (25 May 2012)

The Complaints Resolution Panel (respondent) received complaints about Swisse Vitamins Pty Ltd's (applicant) advertising regarding its truthfulness, effectiveness and potential to mislead consumers in relation to certain products. The complaints were about the slogan "you'll feel better on Swisse" and other representations.

Under the Therapeutic Goods Regulations 1990 (Cth) (Regulations), the respondent had to, and did, provide the applicant with an opportunity to make submissions regarding the complaints. The respondent upheld several complaints and requested that the applicant withdraw its advertisements and some representations.

The applicant complained that it was denied natural justice or procedural fairness under the

Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). It claimed that it did not have a chance to make submissions regarding all matters because:

  • The complaints were not clear enough; or
  • The adverse findings were made despite no relevant allegation.

For contraventions of the Code that did not stem from complaints, the respondent had to provide the applicant with its decision regarding the breach and invite it to make further submissions. The respondent found further contraventions but did not notify the applicant. This constituted a breach of natural justice.

As the respondent's requests for advertisement withdrawals linked all of the decisions regarding individual allegations, the particular decisions involving a breach of procedural fairness could not be isolated. Therefore the court ordered that every request be set aside and the matter be remitted to the respondent for further hearing and determination.

New South Wales Nursing & Midwifery Tribunal of New South Wales

HCCC V Burggraaff [2012] NSWNMT 4 (1 June 2012)

The Health Care Complaints Commission (complainant) alleged unsatisfactory professional conduct and professional misconduct against Keith Burggraaff, a nurse, (respondent). The allegation was that the respondent, without authorisation, accessed medical records for a reason other than the provision of clinical care or carrying out his role in providing health services of patients.

The respondent had access to records through the Clinical Applications Portal. He stated that he was in a fragile psychological state, having problems at work and was looking for a new job. He said he checked patient lists against different centres to find a job. He gave evidence that he never accessed files with the intention to harm anyone or use the information on an individual basis. He stated that he looked up special care needs of patients proposed for transfer to the unit, and checked on claims by other wards regarding their availability to see if they were validated.

The Tribunal held that the respondent acknowledged his conduct was inappropriate in many cases. Furthermore, the definition on the scope of appropriate access was unclear and this probably resulted in more files being accessed than what was necessary. However, the Tribunal still found that the respondent failed to exercise judgment reasonably expected of a nurse of his training and experience and improper or unethical conduct could not be denied. Cumulatively, his repeated breaches amounted to professional misconduct of a relatively low level of seriousness.

HCCC V O'Connor [2012] NSWNMT 6 (4 June 2012)

Complaint against a nurse – unsatisfactory professional conduct – impairment – non-publication order – protective orders – conditions on registration – costs.

HCCC v Belkadi (No 1) [2012] NSWNMT 5 (1 June 2012)

Nurse and midwife – convictions for three criminal offences – unsatisfactory professional conduct – professional misconduct – not a suitable person to hold registration – failure to make full declaration on registration renewal forms – substantial "loans" of money from a patient and close relative of another patient.

Australian Capital Territory. Civil & Administrative Tribunal

Medical Board of Australia & Medical Practitioner V1 (Occupational Discipline) [2012] ACAT 36 (8 June 2012)

Occupational discipline – medical practitioner – boundary violation by psychiatrist – expressions of personal feelings to patient – effect on patient – prescribing of drugs when not able to continue treatment – failure to arrange alternate treatment – limited value of testimonials – need for further expert evaluation of the practitioner before registration – doctor's needs put ahead of patient's needs – inappropriate place of disclosure – excessive prescribing of drugs.

Western Australia. State Administrative Tribunal

Hoffman and Medical Board of Australia [2012] WASAT 110 (25 May 2012)

Vocational regulation – medical practitioners – acting improperly in the course of practice as a medical practitioner – review – penalty – mother brought infant son to medical centre for treatment but arrived before a doctor was available – mother approached practitioner in doorway outside medical centre and asked him whether he was a doctor – practitioner said that he was not a doctor and entered centre – practitioner admitted that he acted improperly in the course of his practice – Professional Standards Committee recommended that the practitioner be cautioned – Medical Board of Australia rejected Committee's recommendation and ordered that the practitioner be reprimanded and fined $1,000 – momentary lapse due to overwhelming stress – genuine and almost immediate recognition of impropriety – unblemished disciplinary record – demonstration of dedication and commitment to medical profession and community – practitioner cautioned.

Medical Board of Australia and Bernadt [2012] WASAT 108 (25 May 2012)

Medical practitioner – allegation of acting carelessly, incompetently or below required standards – inadequate history – performing adenoidectomy – patient with submucous cleft palate.

LEGISLATION

Commonwealth

National Health (Listed drugs on F1 or F2) Amendment Determination 2012 (No. 4) (No. PB 41 of 2012) - F2012L01208 " PB 41 of 2012 as made

National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2012 (No. 5) (No. PB 37 of 2012) - F2012L01204 " PB 37 of 2012 as made

National Health Act 1953 - Amendment determination under paragraph 98C(1)(b) - conditions (No. PB 38 of 2012) - F2012L01202 " PB 38 of 2012 as made

Poisons Standard 2012 - F2012L01200 " as made

Health Insurance (Diagnostic Imaging Capital Sensitivity) Amendment Determination 2012 - F2012L01185 " as made

Health Insurance (Endovenous Laser Therapy) Determination 2012 - F2012L01165 " as made

REPORTS

Australia. Department of Health & Ageing

Media releases

Private Health Insurance Circular - PHI 40/12 Important dates for the August 2012 Prostheses List

Draft National Tobacco Strategy 2012-2018

Review of the National Industrial Chemicals Notification and Assessment Scheme - Consultation opened: 7 Jun 2012 - Consultation closes: 27 Jul 2012 - Responsible Area: Office of Health Protection. The Department invites interested parties and individuals to provide written submissions to the Discussion Paper: Review of the National Industrial Chemicals Notification and Assessment Scheme – June 2012, which outlines potential options for reforming the regulation of industrial chemicals.

Australia. Private Health Insurance Administration Council

8 June 2012 – Industry Education Seminars – program update – current edition – 12/13

8 June 2012 – The Doctors' Health Fund Pty Ltd – change in registration status and company type – current edition – 12/12

12 June 2012 - Private health insurance rebate - What is the private health insurance rebate?

Australian Health Practitioner Regulation Agency (AHPRA) and the Boards

15 June 2012 - Chinese Medicine Board - The Board has released an FAQ about applications for registration and continuing professional development. | Read Article

14 June 2012 - AHPRA has released advice about the transitional arrangements for professions entering the National Scheme on 1 July. | Read Article

8 June 2012 - Call for Nominations or Expressions of Interest - Northern Territory. | Read Article

4 June 2012 - The Medical Board of Australia and AHPRA have today published further detail of the Board's financial statements for the 2010-2011 financial year. | Read Article

4 June 2012 - Students about to graduate as health practitioners are urged to go online to apply early for registration and smooth the path from study to work. | Read Article

1 June 2012 - The Psychology Board of Australia releases its latest Communiqué. | Read Article

1 June 2012 - The Pharmacy Board of Australia releases its latest Communiqué. | Read Article

1 June 2012 - The Pharmacy Board releases its latest newsletter. | Read Article

Australian Commission on Safety & Quality in Healthcare

May 2012 - Analysis of Residential Aged Care Facility Staff and Approved Provider Surveys

Consultation on the review of the Open Disclosure Standard

Australian Institute of Health & Welfare

15 June 2012 - The health of Australia's males - Male health dashboard | Media release

14 June 2012 - Trends in the Australian Dental Labour Force, 2000 to 2009: dental labour force collection, 2009 | Media release

12 June 2012 - AIHW Access no. 33

6 June 2012 - Insurance and use of dental services: National Dental Telephone Interview Survey 2010 | Media release

1 June 2012 - Hospitalisations due to falls in older people, Australia 2008-09 and Hospitalisations due to falls in older people, Australia 2007-08 and Hospitalisations due to falls in older people, Australia 2006-07 | Media release

Australian National Council on Drugs

6 June 2012 - National advisory body urges government and service providers to take action to prevent foetal alcohol spectrum disorder

Australia. National Health & Medical Research Council

12 June 2012 - Australian Smart Phone Research to Combat Chronic Disease in Lower and Middle Income Countries

2 June 2012 - Funding to tackle the human health effects of Hendra Virus

Research Tracker – 1 June 2012 edition

Australia. Therapeutic Goods Administration (TGA)

15 June 2012 - Presentations about manufacturing therapeutic goods - Added presentation: A snapshot of Good Manufacturing Process in the cellular therapy and tissue sectors.

14 June 2012 - Reasons for scheduling delegates' final decisions, June 2012 - Reasons for decisions by the Delegate of the Secretary to the Department of Health and Ageing for amendments to the Poisons Standard.

14 June 2012 - Documents released under Section 11C of the Freedom of Information Act 1982 (Cth) - Added FOI 245-1112 documents.

13 June 2012 - Metal liner components of R3 acetabular system (used in hip replacements) - The TGA advises that the R3 metal liner component of the R3 acetabular system (used in hip replacements) is being recalled.

12 June 2012 - Process review: minor variations to prescription medicines - for sponsors - Proposed changes to the process for making certain minor variations to Australian Register of Therapeutic Goods (ARTG) entries for registered prescription medicines.

7 June 2012 - Australian Public Assessment Reports for prescription medicines (AusPARs) - Added seven AusPARs.

7 June 2012 - Deactivation of superseded herbal ingredient names - The TGA has completed changes to the ARTG entries of medicines affected by the update to herbal ingredient names and deactivation of superseded herbal ingredient names was finalised on 30 May 2012.

7 June 2012 - Other-Sonic Generic Ultrasound Transmission Gel - Specific lots of Other-Sonic Generic Ultrasound Transmission Gel have been recalled due to contamination by bacteria.

4 June 2012 - Scheduling news - Updates and news about scheduling medicines and poisons.

4 June 2012 - Complementary medicines regulatory reforms - The TGA has started work on a series of reforms to complementary medicines.

1 June 2012 - Dr John Skerritt - Dr John Skerritt is the National Manager of the TGA.

1 June 2012 - PIP breast implants - TGA update - Updated information on safety concerns with PIP breast implants.

1 June 2012 - Medicines Safety Update, Volume 3, Number 3, June 2012 - June 2012 issue of Medicines Safety Update.

Australian Capital Territory. Department of Health

Media releases

4 June 2012 - ACT Quality in Healthcare Awards - Applications are now open for the 2012 round of the ACT Quality in Healthcare Awards.

New South Wales. Ministry of Health

Media releases

Policy directives

NSW Government Response to NSW Health and Medical Research Strategic Review

Queensland. Department of Health

Media releases

South Australia. Department of Health

Media releases

Lyell McEwin Hospital - investigations of alleged Emergency Department incidents - a full report of the Lyell McEwin Hospital - Investigations of alleged Emergency Department incidents can be accessed here.

Tasmania. Department of Health & Human Services

Suicide Pevention Strategy Call for Proposal

12 June 2012 - Proposed changes to radiation laws

12 June 2012 - Help ward off the winter flu

Victoria. Department of Health

Media releases

Hospital circular

4 June 2012 - Publication Number 11 / 2012 - Subject: Funding of the Proposed New Nurses' and Midwives' Enterprise Agreement.

Non-admitted clinic management system

S10 Non-Admitted Clinic Activity 2012-13 – instructions

Annual Report Guidelines - Health Services 2011-12 - To assist agencies with completing the 2011/12 annual financial statements, an excel version of the pro-forma tables embedded in the guidelines is also provided.

Pro-forma Tables - The timetable below is supplied to provide details to assist agencies with their planning for DH information requests for the 2011/12 Financial Report for the State of Victoria (AFR).

DH Request Timetable - 2011-12 - Please note common errors found in Annual Reports which are detailed in the Appendix provided to avoid recurrence of such errors.

Annual Reporting Guidelines - Health Services Appendix - anomalies in annual reports - For further information relating to these guidelines or timetable please contact Peter Lewis on (03) 9096 9050 or email healthagenciesreporting@health.vic.gov.au.

Western Australia. Department of Health

New Zealand. Ministry of Health

14 June 2012 - Tupu Ola Moui: Pacific Health Chart Book 2012 - Tupu Ola Moui presents key indicators for Pacific health including socioeconomic determinants, risk and protective factors, health status, the health system and health service utilisation. Read more

5 June 2012 - http://www.health.govt.nz/publication/standing-orderguidelinesStanding Order Guidelines - The Standing Order Guidelines are a resource for health professionals working with standing orders. It provides a user-friendly guide to assist issuers when developing and/or reviewing standing orders. It also outlines the roles and responsibilities of health professionals issuing standing orders and those working under standing orders. Read more

5 June 2012 - Improving Nurses Utilisation of Evidence to Inform Clinical Practice Project Reports - Two reports from Midland and Caterbury District Health Boards outlining the improvements of nurse utilisation of evidence to inform clinical practice project. Read more

5 June 2012 - New Zealand Maternity Clinical Indicators 2009: Revised June 2012 - The New Zealand Maternity Clinical Indicators are a integral part of the Ministry of Health's Maternity Quality Initiative. These indicators are evidence-based and cover a range of procedures and outcomes for mothers and their babies. This benchmarked data will be used to support the local clinical review of maternity services. Read more

5 June 2012 - Rauemi Atawhai – A guide to developing health education resources in New Zealand - Rauemi Atawhai - A guide to developing health education resources in New Zealand has been developed to help the Ministry of Health and its contractors produce effective and appropriate health education resources that meet the needs of the intended audience, are easy to understand and support improved health literacy. Read more.

30 May 2012 - Your Guide to Individualised Funding - A guide to Individualised Funding – a way of paying for home and community support services which lets disabled people directly manage the resources they are allocated for disability supports. Read more

United Kingdom. Department of Health

14 June 2012 - Update on public health funding for local government - An update on public health funding for local government has been published by the Department of Health. The document is aimed at public health specialists. Read more - Update on public health funding for local government

12 June 2012 - Social Enterprise Investment Fund to reopen for applications - The Department of Health has announced a further investment of £19 million for social enterprises over the next year. Read more - Social Enterprise Investment Fund to reopen for applications

12 June 2012 - Chair of Health Research Authority confirmed - Professor Jonathan Montgomery will head up the Health Research Authority, the new organisation that will protect and promote the interests of patients and the public in health research. Read more - Chair of Health Research Authority confirmed

11 June 2012 - Last chance to have your say on the long-term conditions strategy - This is the last week to comment on what should be covered by the cross-government long term conditions strategy. The deadline for comments is 15 June. Read more - Last chance to have your say on the long term conditions strategy

8 June 2012 - David Behan CBE appointed chief executive at CQC - David Behan CBE, the Department's Director General of Social Care, Local Government and Care Partnerships, has announced his departure. Read more David Behan CBE appointed chief executive at CQC

7 June 2012 - Social enterprises to receive £19 million investment over next year announced - Today the Department of health announced investment of £19m over the next year for social enterprises, on top of the £100m already invested over the last five years. Read more ? Social enterprises to receive £19 million investment over next year announced

7 June 2012 - GP practice data and comparative tool available to patients and professionals - The publication of GP practice data aims to provide the public with information on services they access on a regular basis, enabling individuals to make informed choices and decisions. Read more - GP practice data and comparative tool available to patients and professionals

6 June 2012 - Department seeks member for the National Advisory Group on Clinical Audit and Enquiries - The National Advisory Group on Clinical Audit and Enquiries is responsible for advising the Department of Health in England about policies to reinvigorate and improve clinical audit. Read more - Department seeks member for the National Advisory Group on Clinical Audit and Enquiries

Canada. Health Canada

12 June 2012 - Harper Government Announces Investment to Support Palliative Care - Offering Compassionate Care Outside of a Hospital Setting

5 June 2012 - Harper Government Clamps Down on Street Drug "Bath Salts" - Will give law enforcement ability to deal with new drug threat

United States of America. Department of Health & Human Services

Prevention Council issues action plan to promote wellness - Surgeon General Regina M. Benjamin today announced the release of the National Prevention Council Action Plan, which aims to increase the number of Americans who are healthy at every stage of life.

HHS harnesses the power of health data to improve health - The Department of Health and Human Services (HHS), along with the Institute of Medicine and other members of the Health Data Consortium, are cohosting the third annual "Datapalooza" focusing on innovative applications and services that harness the power of open data from HHS and other sources to help improve health and health care.

Australian Medical Association (AMA)

14 June 2012 - Council of Australian Governments (COAG) report confirms no improvement in public hospitals and shortage of hospital beds - AMA President, Dr Steve Hambleton, said today that the COAG Reform Council's latest report on the National Healthcare Agreement confirms the findings of the AMA's annual Public Hospital Report Cards – there are not enough hospital beds and there are too many patients languishing on waiting lists. Dr Hambleton said that, on the basic measures, there has been no real change in the capacity of our hospitals to meet demand.

14 June 2012 - AMA urges Federal Government to drive action to address shortage of intern positions - The AMA has written to Health Minister Tanya Plibersek urging strong leadership from the Federal Government in discussions with the states and territories to address the looming shortage of intern positions. The AMA understands that the first of a series of meetings on this issue involving senior Commonwealth and State Health Department officials takes place tomorrow. AMA President, Dr Steve Hambleton, said today that recently published information shows there will be a shortage of around 300 intern posts in NSW and Victoria alone next year.

7 June 2012 - The professional relationship between doctors and patients - updated AMA guidance - The AMA today released two updated Position Statements that deal with the professional relationship between doctors and patients. Doctors have an ethical and legal duty to maintain appropriate professional boundaries with their patients.

5 June 2012 - Adapting to a changing environment - Throughout its history, the AMA has changed and evolved and adapted to be able to lead effectively and to respond to issues, both external and internal. So, as the AMA celebrates 50 years since separation from the British Medical Association, it is timely to reflect on the environment in which we operate. The Federal Council has discussed the AMA's governance structure over the course of the last two years, its impact on the efficient development of public policy, and its responsiveness to the membership.

Canadian Medical Association (CMA)

14 June 2012 - To cut wait times, fix referral process: CMA

11 June 2012 - Canadians who studied abroad finding residencies at home

8 June 2012 - Conference tackles stigma against people with mental illness

4 June 2012 - CMA worried by declining federal interest in health care

1 June 2012 - Changes in dermatology more than skin deep, CMA says

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com

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Anthony Willis
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