Australia: Health Alert - 5 November 2012

Last Updated: 10 November 2012
Article by Michael Regos

JUDGMENTS

South Australia

RE H, AE (No 2) [2012] SASC 177 (12 October 2012)

An application was made for a declaration that the applicant be entitled to possession of sperm of her late husband extracted shortly after his death pursuant to orders of the court.

The deceased died in a motor vehicle accident in South Australia in March 2011. The applicant commenced an urgent proceeding 48 hours after the death of her husband for the removal, preservation and storage of the deceased's sperm. This was granted by the court but orders were made to ensure that the sperm was not used without a further order of the court.

The declaration currently sought was for the applicant's possession and subsequent use of the sperm. The court considered the question of whether or not body parts are capable of being property.

The Attorney-General intervened and contended that in considering the relief sought by the applicant, the relevant legislation needed to be considered. South Australian legislation regulates who may provide IVF treatment as opposed to who may access it. Under South Australian legislation, a registered provider of services can provide a woman in the position of the applicant with treatment if an exception is sought and the written consent of the Minister is obtained.

The court held that the sperm is capable of being property and that the applicant should have possession of it, but only in a manner approved by the court. The court held that before the order for release was made the approach for obtaining the Attorney-General's consent needed to be considered.

Victorian Civil and Administrative Tribunal

Chinese Medicine Board of Australia v Yang (Occupational and Business Regulation) [2012] VCAT 1615 (25 October 2012)

During 2008, Ms Yang (the respondent) came to the attention of the Chinese Medicine Board of Australia while they were investigating the proprietor of the clinic she worked in. The investigation was in relation to the treatment of a male patient the respondent and her boss had provided.

The Board contended that the respondent had engaged in professional misconduct when she failed to refer the patient to a medical practitioner, specialist or a western hospital when it became, or should have become evident that the patient's condition had not improved after 12 consultations. They also contended she failed to document the patient's medical history correctly and had prescribed and dispensed bottles of herbs without providing any information regarding the contents.

The respondent admitted to the allegations. The Board and the respondent came to an agreement as to the sanction she would face. There is a well-established line of authority in support of the proposition that where a regulatory body and a respondent have reached a negotiated settlement and the penalty proposed is within the "permissible range" (having regard to all the circumstances), the court (or in this case the Tribunal) should not depart from the agreed sanction.

The Tribunal held that in this case the sanction was appropriate. As a result the respondent was cautioned and ordered to undertake 10 one-hour mentoring sessions to be completed within 10 months of the date of the orders.

Chinese Medicine Board of Australia v Lim (Occupational and Business Regulation) [2012] VCAT 1614 (25 October 2012)

MLNO v Medical Board of Australia (Occupational and Business Regulation) [2012] VCAT 1613 (24 October 2012)

LEGISLATION

Commonwealth

Therapeutic Goods Information (Outcomes of Compliance Reviews of Listed Complementary Medicines) Specification 2012 - F2012L02142 " as made

Private Health Insurance (Complying Product) Amendment Rules 2012 (No. 8) - F2012L02137 " as made

Health Insurance (Gippsland and South Eastern New South Wales Mobile MRI Service and Rockhampton, Bundaberg and Gladstone Mobile MRI Service) Determination 2012 - F2012L02118 " as made

Private Health Insurance (Benefit Requirements) Amendment Rules 2012 (No. 7) - F2012L02114 " as made

Health Insurance (Cleft Lip and Cleft Palate Services) Determination 2012 - F2012L02113 " as made

Private Health Insurance (Benefit Requirements) Amendment Rules 2012 (No. 6) - F2012L02111 " as made

National Health (Highly Specialised Drugs Program for Hospitals) Special Arrangement Amendment Instrument 2012 (No. 9) (No. PB 96 of 2012) - F2012L02107 " PB 96 of 2012 as made

Health Insurance (General Medical Services Table) Amendment Regulation 2012 (No. 4) - F2012L02103 " SLI 2012 No. 245 as made

Health Insurance (General Medical Services Table) Regulation 2012 - F2012L02101 " SLI 2012 No. 244 as made

Health Insurance (Midwife and Nurse Practitioner) Amendment Determination 2012 (No. 1) - F2012L02099 " as made

Health Insurance (Bone Densitometry) Determination 2012 - F2012L02098 " as made

Health Insurance (Diagnostic Imaging Capital Sensitivity) Amendment Determination 2012 (No. 2) - F2012L02097 " as made

Health Insurance (Allied Health Services) Amendment Determination 2012 (No. 4) - F2012L02095 " as made

Health Insurance (Diagnostic Imaging Services Table) Regulation 2012 - F2012L02093 " SLI 2012 No. 243 as made

Health Insurance (Pathology Services Table) Regulation 2012 - F2012L02094 " SLI 2012 No. 246 as made

REPORTS

Australia. Department of Health & Ageing

Media releases

1 November 2012 - Improved Access to Medicare-Funded MRI Services - Thousands of patients, particularly children, will benefit from expanded access to Medicare-funded Magnetic Resonance Imaging (MRI) services.

1 November 2012 - Baseball League to Tackle Binge Drinking - The Australian Baseball Federation and the Australian Baseball League have formed a landmark partnership to sign up to the Be the Influence: Tackling Binge Drinking campaign.

31 October 2012 - Australians Warned of Late Effects of Polio - Doctors and the general community have been urged to learn about the late effects of polio, which can severely affect people 15 or more years after contracting the polio virus.

31 October 2012 - New Resources to Help Deliver Better Care for Older Australians - Three new resources have been released that will help aged care workers support older Australians, including updated guidelines on medication management in aged care.

29 October 2012 - Smoking Rates in Australia Continue to Decline - Smoking rates and unhealthy levels of alcohol consumption are down, but the percentage of adults who are overweight or obese has increased; rates of diabetes have remained stable after trending up over the last decade, but mental health problems and behavioural conditions have risen, according to the results of the Australian Health Survey, issued on 29 October.

29 October 2012 - Guidelines to Address the Trauma of Childhood Abuse - A new set of guidelines that aim to help mental health and social service providers better understand the complex effects of trauma on adult survivors of childhood abuse were launched on 29 October 2012.

Decision-Making tool: Responding to Issues of Restraint in Aged Care

Decision-Making Tool: Supporting a Restraint-Free Environment in Community Aged Care

Decision-Making Tool: Supporting a Restraint-Free Environment in Residential Aged Care

Australia. National Blood Authority (NBA)

National Policy on Barcoding - The NBA is seeking written submissions, comments and feedback on the issues raised in this Discussion Paper and/or any other issues relevant to the topic.

Australian National Preventive Health Agency (ANPHA)

1 November 2012 - Minimum (Floor) Price for Alcohol Draft Report Released

17 October 2012 - Be the Influence: Tackling Binge Drinking Website Goes Live

16 October 2012 - Information on the Exploring the Public Interest Case for a Minimum (Floor) Price for Alcohol Report

16 October 2012 - ANPHA 2011-2012 Annual Report

5 October 2012 - ANPHA Advisory Council Communiqué -30 August 2012

Australian Health Practitioner Regulation Agency (AHPRA) and the Boards

2 November 2012 - The Dental Board of Australia releases its latest communique.

1 November 2012 - The Australian Nursing and Midwifery Accreditation Council has published on its website a communique on the implementation of the National Board-approved Registered Nurse Accreditation Standards (2012).

1 November 2012 - The Occupational Therapy Board of Australia issues urgent advice about being registered to use the title "occupational therapist".

1 November 2012 - The annual report of AHPRA and the National Boards has been published.

31 October 2012 - Call for nominations or expressions of interest for health practitioners and community members to join the Occupational Therapy Board of Australia's list of approved persons for panel appointments.

31 October 2012 - The ATSI Health Practice Board of Australia releases its latest communique.

31 October 2012 - The Psychology Board of Australia releases its latest communique.

31 October 2012 - Call for nominations or expressions of interest for health practitioners and community members to join the Occupational Therapy Board of Australia's List of approved persons for panel appointments.

31 October 2012 - The National Board invites occupational therapists to a free breakfast forum in Melbourne, November 13.

30 October 2012 - Call for nominations or expressions of interest for health practitioners and community members to join the Podiatry Board of Australia's List of approved persons for panel appointments.

30 October 2012 - The Chinese Medicine Board of Australia releases its first newsletter.

30 October 2012 - The Medical Board releases its latest communique.

30 October 2012 - The Medical Radiation Practice Board of Australia releases its first newsletter.

30 October 2012 - The Osteopathy Board of Australia releases its latest communique.

30 October 2012 - Call for nominations or expressions of interest for health practitioners and community members to join the Podiatry Board of Australia's List of approved persons for panel appointments.

29 October 2012 - Call for Nominations or Expressions of Interest for appointment to the Continuing Professional Development (CPD) Joint Committee of the Chiropractic Board of Australia.

29 October 2012 - The Nursing and Midwifery Board of Australia (National Board) invites enrolled nurses, registered nurses and midwives to participate in a survey on national competency standards for enrolled nurses.

29 October 2012 - The Physiotherapy Board of Australia releases its latest listing of Approved Programs of Study.

26 October 2012 - The Chiropractic Board of Australia releases its latest communique.

26 October 2012 - The Optometry Board of Australia releases its latest communique.

26 October 2012 - The Pharmacy Board of Australia releases its latest communique.

26 October 2012 - Statement from the Chinese Medicine Board of Australia - The Chinese Medicine Board of Australia has noted widespread use of the terms such as "complementary" and "alternative" medicine with a high degree of variation in meaning. This is confusing in it itself and the variable inclusion of Chinese medicine confuses the public about what Chinese medicine is. The Board therefore agreed to develop a succinct statement explaining what Chinese medicine is, in the context of the national law which protects specific words and titles and including how it is practised in the Australian healthcare context. The purpose of this is to accurately inform the public. Read the statement (72.5 KB, PDF)

Australian Commission on Safety and Quality in Health Care

On the Radar – 29 October 2012 – Issue 103 (92KB)

Media release

16 October 2012 - HCF releases member rankings of hospital experience - As part of its drive towards greater transparency in the delivery of health and medical services, Australia's largest not-for-profit health insurer, HCF, has today released summary results of its survey of hospital experiences of more than 8,000 of its members.

Australian Institute of Health and Welfare (AIHW)

2 November 2012 - Food for thought: what do short questions on food habits tell us about dietary intakes?

31 October 2012 - A picture of Australia's children 2012 - "100 Aussie kids" (9MB Powerpoint) | Infographic (1.7MB PDF) | Media Release

31 October 2012 - AIHW annual report 2011–12

Australia. National Health & Medical Research Council (NHMRC)

H5N1 bird flu forum to tackle future epidemics - Leading H5N1 bird flu experts have met to discuss research to assist the Asia Pacific region's response to future epidemics. The forum was organised by the NHMRC. Jointly hosted with the Bill and Melinda Gates Foundation, the forum will hear from leading H5N1 bird flu experts on the need for greater awareness of public policy, improved response to future pandemics and new innovations in vaccine development.

NHMRC Research Translation Faculty – Launch at Symposium a Resounding Success - NHMRC CEO, Professor Warwick Anderson has officially launched the Research Translation Faculty, a major strategic initiative for health and medical research translation in Australia. The Faculty is represented by over 2,500 members made up of NHMRC-supported Chief Investigators or NHMRC Fellows.

Australian Competition and Consumer Commission (ACCC)

Media release

26 October 2012 - ACCC proposes to authorise pharmaceutical industry Code of Conduct for three years

Australia. Private Health Insurance Industry Ombudsman

31 October 2012 - Quarterly Bulletin 64: 1 July 2012 to 30 September 2012

30 October 2012 - 2012 Annual Report

Australia. Therapeutic Goods Administration (TGA)

31 October 2012 - Questions and answers: selling and advertising of cancelled listed medicines

30 October 2012 - SMR L2 Metal Back Glenoid Component (used in shoulder replacements) - The TGA advises health professionals and patients that the SMR L2 Metal Back Glenoid Component has been discontinued.

30 October 2012 - Durom Acetabular Component (used in hip replacements) - The TGA advises health professionals and patients that Zimmer has cancelled this implant from the Australian Register of Therapeutic Goods (ARTG).

30 October 2012 - Birmingham Hip Modular Head (used in hip replacements) - Health professionals and patients are advised that data collected by the Australian National Joint Replacement Registry and other registries shows that the BHMH has a higher than expected revision rate.

30 October 2012 - Apex K2 Femoral Stem (used in hip replacements) - The TGA advises health professionals and patients that Global Orthopaedic Technology has cancelled the Apex K2 Femoral Stem from the ARTG.

30 October 2012 - Muscletech Hydroxystim 3s, 18s, 110s and 200s capsules - Retailers and consumers are advised that all available batches of Muscletech Hydroxystim capsules have been recalled.

30 October 2012 - Cancellations from the ARTG following compliance review - Updated comments on products cancelled from the ARTG following compliance review.

Australia. Office of the Information Commissioner

30 October 2012 - Healthcare Identifiers Annual Report 2011–12 published

Australian Bureau of Statistics

Media release

29 October 2012 - Australian Health Survey: First Results

New South Wales. Ministry of Health

Media release

31 October 2012 - Another step forward for ambulance at Albury

Northern Territory. Department of Health

Work of Trauma Centre highlighted in Asian Century paper - The ongoing work of the Northern Territory's National Critical Care and Trauma Response Centre has been highlighted in the Asian Century white paper released yesterday.

Nominate NT's best Aboriginal Health Workers - The search is back on for the NT's best Aboriginal Health Workers (AHWs), with nominations for the 2012 AHW Excellence Awards now open.

Queensland. Department of Health

Media releases

Parents and bubs given best possible start - Queensland parents and their newborns will have a better start to life, with the Newman Government launching new in-home support services for mothers and their babies.

Access to breast screening services expanded - Women under 40 who are at an increased risk of breast cancer will have access to specialist screening services under a new policy announced by Health Minister, Lawrence Springborg today.

Labor MPs join Wayne Swan in attack on Queensland Health - Sick Queenslanders and their families are under attack from Treasurer Wayne Swan, who cut $342 million from the state health system without a peep of criticism from Labor MPs.

Questions over Eventide sale by Labor's Gordon Nuttall - Labor politicians exploiting concerns of Eventide residents at Sandgate were silent when part of the site was sold in 2011 in a deal brokered by their corrupt former MP, Gordon Nuttall.

New program helps children live healthy lifestyle - Queensland Health is leading a $49 million package of initiatives to help children and young teenagers stamp out chronic disease.

Queensland Government payroll document - Government Information Technology Contract (GITC) Q11 between the State of Queensland and IBM Australia Ltd - now released

Revitalising health services in the Wynnum-Bayside area

South Australia. Department of Health

Media releases

30 October 2012 - Faster payment for country patients' travel costs - Hon John Hill MP - Country patients are now receiving payments to help with their costs for travel to receive treatment 14 times faster than under the old system.

30 October 2012 - James Nash House redevelopment - Hon John Hill MP - Minister for Mental Health, John Hill has announced an increase in forensic mental health capacity in South Australia.

29 October 2012 - Safe, affordable, quality health care - Hon John Hill MP - The Government's response to the recommendations made in three external reports on potential savings will ensure that South Australians continue to receive access to safe, high-quality and affordable health care.

27 October 2012 - New criteria and nurse-led hospital discharge pilot at FMC - Hon John Hill MP - Reducing patients' length of stay in hospitals and developing more effective and timely discharge processes are at the centre of a new pilot at the Flinders Medical Centre.

26 October 2012 - McLaren Vale and Districts War Memorial Hospital - Hon John Hill MP - Minister for Health and Ageing, John Hill has met with the Chair, Chief Executive Officer and other members of the Board of the McLaren Vale Hospital to discuss the future of the hospital.

SA Health's Response to the Hospital Budget Performance and Remediation Reviews: Safe, Quality, Affordable Health Care - SA Health's final response to the Hospital Budget Performance and Remediation Reviews undertaken by consulting firms KPMG and Deloitte.

Extreme Heat Operational Plan - The purpose of the SA Health Extreme Heat Plan is to reduce the risk of harmful effects of extreme heat on the health of the community.

Tasmania. Department of Health and Human Services

Media releases

31 October 2012 - Simple guide to healthier workplaces

31 October 2012 - Carols by Candlelight to have clear air

29 October 2012 - New lease of life for Stainforth Court

Victoria. Department of Health

Media releases

1 November 2012 - Canberra rip-off pulls $107 million from Victorian hospitals - The Federal Government plans to rip more than $100 million out of Victoria's public hospitals this year to prop up its own budget with a scam based on dodgy population figures, Victorian Health Minister, David Davis said today.

31 October 2012 - Australian first for depression treatment - In an Australian first for public hospitals, The Alfred is now using revolutionary technology to treat clinical depression.

Agency Information Management System (AIMS) proposals 2013-14

AIMS proposal Securing Our Health System form

Post Graduate Certificate in Transfusion Practice

Western Australia. Department of Health

Read Healthview Spring 2012 (PDF 1.6MB)

Media release

27 October 2012 - WA Health urges almond check after Salmonella food poisoning cases

New Zealand. Ministry of Health

1 November 2012 - Options to Manage the Health and Safety Risks from High-power Laser Pointers: Consultation Paper - This consultation paper is seeking feedback on possible new controls on high-power laser pointers.

1 November 2012 - Guidelines for the Role and Function of Duly Authorised Officers - The Ministry has published updated guidance for employees of mental health services appointed as duly authorised officers under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

1 November 2012 - Guidelines for the Role and Function of Directors of Area Mental Health Services - The Ministry has published updated guidance for employees of mental health services appointed as Directors of Area Mental Health Services under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

1 November 2012 - Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992 - The Ministry has published updated guidance to the Mental Health (Compulsory Assessment and Treatment) Act 1992, outlining the rights of compulsory mental health consumers and the obligations of mental health clinicians.

United Kingdom. Department of Health

Change4Life launches smartphone drinks tracker app - A new smartphone app and enhanced online drinks checker are now available to help people see the impact alcohol can have on their health, waist and wallet.

Cold Weather Plan for England 2012 published - The Cold Weather Plan aims to prepare for the effects of winter weather on people's health.

New Hospital 2 Home discharge pack to support care of older people - Today, Care and Support Minister Norman Lamb, launched the Hospital 2 Home resource pack designed to support older patients returning from hospital.

Fund to create and modernise homes for independent living - The Department of Health today opened a £300 million fund to provide new and modernised homes designed to meet the needs of older people and people with disabilities.

Canada. Health Canada

1 November 2012 - Test your home for radon - During Lung Cancer Awareness Month, radon gas identified as second leading cause of lung cancer, after smoking.

Australian Medical Association

GP registrar minimum terms and conditions 2013

GPs able to refer children for MRI scans

Doctor backlash over Defence Force contracts

British Medical Association (BMA)

1 November 2012 - Training aims to boost ethical supply chains

1 November 2012 - Medical school director champions women's progress

31 October 2012 - Doctors continue to self-prescribe

31 October 2012 - Surprise at cognitive impairment rates

30 October 2012 - BMA Scotland urges soft opt-out donor system

29 October 2012 - Good doctors equal good patients

29 October 2012 - Dutch medics welcome health screening

© 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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