Australia: State-by-state round-up of legal developments

NSW UPDATE:

NSW revisits donor conception regulations

The Assisted Reproductive Technology Amendment Bill 2016 was passed by NSW Parliament on 23 March 2016 and amends the Assisted Reproductive Technology Act 2007 (NSW) and the Births, Deaths and Marriages Registration Act 1995. The Bill follows on from the statutory review of the Assisted Reproductive Technology Act and two parliamentary inquiries into donor conception.

The Assisted Reproductive Technology Act regulates assisted reproductive technology (ART) services in NSW. The Act aims to prevent the commercialisation of human reproduction and protect the interests of persons born from ART treatment, persons who provide gametes—ova and sperm—and women undergoing ART treatment. On occasion the interests of these different groups are not in harmony, which means that the regulation of ART treatment can become emotionally fraught and controversial. ¹

Before this Bill, any child conceived before January 2010 could only access information about their donor if the donor consented. This Bill makes a fundamental change by allowing the disclosure of certain non-identifying information about a donor to persons born before January 2010 as a result of ART treatment. Access is granted through the ART provider or the Secretary or the Ministry of Health. This is a significant change in circumstances where some donors who donated gametes before January 2010 were guaranteed (at that time) a level of confidentiality and anonymity.

Another key change the Bill implements is to provide an exception to the five woman limit. This restriction prevented ART treatment using a donated gamete if there were already five other women who had given birth to offspring of the donor. The five woman limit was introduced to reduce the risk of donor offspring entering into a relationship with an unknown blood relative in the future. However, it had unintended consequences for certain family groups, such as female same sex couples.

Before these changes, both partners in a lesbian relationship would be counted as separate individuals if they accessed sperm from the same donor. Under the new Bill, lesbian couples will now be counted as one family unit (rather than two women) if they both choose to use the same donor to ensure their children share DNA when using the ART process.

Other changes under the Bill are:

• it is now an offence to knowingly falsify or destroy records required to be kept or retained under the Assisted Reproductive Technology Act
• the maximum period donated gametes and embryos created using donated gametes may be stored and used is extended to 15 years
• information about a person born as a result of ART treatment using a donated gamete may be disclosed to the person's siblings and to the donor of the gamete if the Secretary of the Ministry of Health considers that the information should be disclosed
• donors of gametes, offspring of donors and parties to private ART arrangements may voluntarily provide information for inclusion in the central register, and
• the voluntary inclusion of information about donor conception in a birth registration statement and for the recording of that information in the Births, Deaths and Marriages.

We would like to acknowledge the contribution of Briohny Coglin and Summer Foley to this update.

VICTORIA UPDATE:

Changes to County Court litigation in Victoria

The County Court of Victoria has implemented a number of changes to create an efficient, effective and streamlined Common Law Court process that will involve fewer documents and will reduce the "life expectancy" of litigated matters and legal costs.

Unlike other states, in Victoria, parties are required to undertake interlocutory steps including discovery and interrogatories as a matter of course —and are not required to seek leave of the Court to do so. Document discovery occurs in all cases, irrespective of the quantum or complexity. Interrogatories are questions relevant to the issues in dispute that one party serves on the opposing party and are required to be answered under oath. Accordingly, proceedings in Victoria usually see an extra layer of costs, which are directly caused by these additional interlocutory steps.

Furthermore, Victorian courts have lagged behind their interstate counterparts in terms of case management. Other jurisdictions such as NSW have seen judges take a far more interventionist approach on managing their case loads.

These changes clearly reflect the Court's concerns about spiralling costs and delays. Since implemented, we have seen the judiciary become more proactive in case management, with an increased focus on streamlining the life of a litigated matter. That said, it is early days and it remains to be seen if the changes will impact on trial duration and costs.

Cyber attack paralyses health network

In January 2016, the Royal Melbourne Hospital (RMH) fell victim to a debilitating cyber-attack. Media reports at the time suggested the introduced virus shut down RMH's Pathology Department and RMH's computer systems were completely out of commission for several days, with knock-on delays extending over several months. During this time, employees were forced to manually process blood, tissue and urine samples. All but the most critical cases were delayed as RMH tried to recover from the significant disruption the attack caused. Experts worked for weeks attempting to contain the virus that mutated as many as six times in one day. They described the computer virus as one designed to "steal" passwords and login details to access confidential information and defraud funds.

The cost of the attack on RMH would include:

• disruption of business
• lost working days
• crisis management and public relations, and
• substantial costs of securing, repairing and upgrading the computer systems.

Another cost that hospitals are potentially vulnerable to, include complaints and possible litigation if patients' private records are accessed. There are also risks of error when hand writing notes about important procedures, such as processing pathology specimens, and then entering them into a restored computer system at a later stage.

Undeniably, a hospital may suffer reputational damage as a result of an incident such as this.

While this was the first such publicised attack to hit Australia, the United States has seen several similar attacks over the past few years. Commonly, the virus is sent in an email and once it is released, it encrypts computer files and brings systems to a standstill. In the US, cybercriminals have demanded ransoms from several hospitals in return for the "key" to unlocking encrypted documents. Clearly, hospital and medical centres are seen as easy targets as they run critical systems that cannot be interrupted and are perceived as having the funds to pay ransom.

"Med-jacking" is another form of cyber-attack that seems to be increasing in frequency. This involves hackers "hijacking" medical technologies, such as MRI machines and devices used to regulate IV feeds, often with the threat to alter or stop these devices operating. Electronic patient records that are being used during surgical procedures have also been hacked and frozen, which obviously compromises patient safety.

The increased prevalence of real and potential cyber-attack scenarios is concerning and should prompt medical facilities to review their response plans and cyber risk insurance cover.

We would like to acknowledge the contribution of Jehan Mata to this update.

QUEENSLAND UPDATE:

Infrastructure Development

New health care infrastructure is being established in response to the demand for health care services throughout the State, including:

• Townsville Hospital, which is nearing the end of a five-stage, $449m redevelopment, with the Hospital now boasting Queensland's largest emergency department.
• Princess Alexandra Hospital in Brisbane has implemented a digital system that automatically logs data from bedside patient monitoring devices and allows medical staff to access that information electronically.
• Mater Health Services has completed its $85m, 80 bed hospital in Springfield. The Hospital features a $21.4m cancer care centre with 15 oncology treatment bays.
• Sunshine Coast University Hospital is expected to open in April 2017. The Hospital is the centrepiece of the Sunshine Coast Health Service network, with the initial 450 beds expanding to more than 900 by 2021. The Hospital is co-located with a new private hospital, which is treating public patients under contract to the State Government until 2018.
• The State Government's Enhancing Regional Hospitals program includes the recent upgrade of Charleville Hospital and the building of a new $70m hospital in Roma.

Changes to the Public Health Act

Recent amendments to the Public Health Act 2005 (Qld) give childcare service providers the power to exercise discretion regarding the permitted attendance or expulsion of children from childcare who are not up-to-date with immunisations.

These changes coincide with the Commonwealth Government's "no jab, no pay" measures that link vaccination with eligibility for tax benefits and childcare subsidies, and removes "conscientious objection" as a reason for vaccination exemption. The public health strategy for childhood immunisation is a primary driver for the legislative changes.

The legislature recognises this is an emotive subject and the amendments include protection for persons making attendance decisions based on immunisation status. Post enactment, Queensland's largest childcare service provider (C&K) announced it does not intend to use the legislation to exclude unvaccinated children from early education.

These changes are likely to be challenged by parent or community groups. Insurers of childcare services should review policy wordings to determine how they might respond to third party claims for administrative or judicial determination or, perhaps more remotely, compensation.

Response to the Zika virus

The breed of mosquito that carries the Zika virus (Aedes aegypti) is prevalent in North Queensland and also carries the Dengue Fever virus. However, all confirmed cases in Queensland to date have been people returning from overseas.

Queensland has a mosquito monitoring and eradication program in place. A further $2m is to be invested in this program by State and Federal Governments to increase Zika testing capacity and promote public awareness about the virus and reducing the spread of mosquitos.

We would like to acknowledge the contribution of Andrew Mansfield, Mark Sainsbury and Thomas Dalton to this update.

SOUTH AUSTRALIA UPDATE:

Accessing private health records with no clinical purpose—The Case of Cy Walsh

Recently, a number of SA Health hospital staff were sanctioned or fired after accessing the medical records of an accused in a high-profile murder case in Adelaide. Cy Walsh, the son of former Adelaide Crows Coach, Phil Walsh, stands accused of killing his father at their Somerton Park home.

In February 2016, Mr Walsh pleaded not guilty to the murder charge by reason of mental incompetence and is being detained in a mental health facility in Adelaide. The matter may still go to trial, pending the prosecutor's decision on whether to accept that Mr Walsh was mentally incompetent.

A number of hospital staff accessed Mr Walsh's records with no clinical purpose for so doing. The breach of Mr Walsh's privacy was discovered through an internal audit process. The staff involved were disciplined.

Patients have a right to expect that doctors and medical staff will hold information about them in confidence, unless release of information is required by law or public interest considerations.² Medical staff must be able to justify the reason for accessing a private patient record.

This case should serve as a warning to medical staff. Accessing electronic records leaves a footprint. Medical professionals must be aware that allowing their curiosity to get the better of them can open themselves up to investigation by bodies such as AHPRA or the Office of the Privacy Information Commissioner and could even cost them their registration or, indeed, their job.

Flexible approach to procedural requirements when resolving medical negligence disputes

Early settlement remains one of the most valuable cost-saving strategies in resolving medical negligence disputes, particularly given the reputational concerns for insureds and the requirements for formulation and disclosure at an early stage.³

However, settlement agreements are only binding on persons with a disability with court approval.⁴ It should be noted that the definition of disability includes children and those with mental incapacity.⁵

The District Court of South Australia approved a settlement affecting a person under a disability in M, H v Children,Youth and Women's Health Service Incorporated.⁶ In the case, a neurosurgeon failed to remove a large cyst from the Plaintiff's spinal cord during surgery. The defendants admitted liability. The parties agreed to a settlement of $2,786,000, with $600,000 granted for loss of earning capacity. A forensic accountant calculated the Plaintiff's potential lost income as $1,250,000.

Usually, the Court will require independent counsel to provide an opinion on settlement before giving its approval. Here, however, it was content to rely upon a detailed advice provided by counsel for the Plaintiff, both of whom are experienced members of the independent bar and had a "close personal interaction with the Plaintiff".

The Court was prepared to accept the advice of the Plaintiff's counsel and, in fact, determined that counsel's personal knowledge of the Plaintiff's circumstances counted in favour of accepting their advice. The Court held that it was appropriate to dispense with the usual requirement for independence, in light of the impact proceedings would have on the Plaintiff and her family, which was a matter that counsel had carefully considered.

Dispute resolution involving children and persons under disability bears additional procedural requirements. However, as this decision demonstrates, courts will take a flexible approach to approving settlements, with the ultimate question remaining whether a settlement is in the best interests of the person.

The New Royal Adelaide Hospital

The New Royal Adelaide Hospital (the New RAH) will be the fourth most expensive building in the world when it opens in 2017, according to property researcher, Emporis.⁷ The New RAH is also the largest infrastructure project in South Australian history. The scale of the project has invited an innovative approach to design, construction and servicing, which involves a partnership between the South Australian Government and the private SA Health Partnership.

Under the partnership, the SA Government will own the New RAH upon its completion, with SA Health providing clinical services, staffing, teaching, training and research. The financing, design, construction and maintenance of the New RAH will be undertaken via a Public Private Partnership for an initial term of 35 years. While contracting private enterprise is not uncommon, the Public Private Partnership approach involves bundling out areas of the project such as design, construction, financing and maintenance on a comprehensive basis, rather than contracting out specific activities.

We would like to acknowledge the contribution of Julie Kinnear and Lani Carter to this update.

WESTERN AUSTRALIA UPDATE:

AME Hospitals Pty Ltd v Dixon

The recent decision of AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 is a reminder for medical malpractice insurers that institutional and individual health care providers are not safe from the threat of claims beyond prescribed limitation periods.

The claim against AME Hospitals by the Plaintiff's parents was founded on allegations connected with the Plaintiff's birth in 2001. The Plaintiff experienced an interruption of blood flow to his brain, known as hypoxic ischaemic encephalopathy (HIE), during birth and was later diagnosed with cerebral palsy.

The Plaintiff's parents sought legal advice in 2006 and obtained an expert opinion that was limited to the level of care administered by the Hospital's staff and did not extend to the cause of the Plaintiff's cerebral palsy. The expert found that the Hospital had exercised care in the birth of the Plaintiff and, therefore, the Plaintiff's parents did not pursue a claim.

Prior to this, in 2005, new legislation was passed that meant the Plaintiff's limitation period expired in 2011. Notwithstanding the limitation period, the Plaintiff's parents engaged a second expert in 2012, who found that the Plaintiff's HIE and resulting cerebral palsy was caused by deficiencies in the care provided at birth.

Armed with this knowledge, the Plaintiff's parents sought an extension of the limitation period under s 39 of the Limitations Act 2005 (WA) on the grounds that the HIE was the "injury" or "physical cause" of the injury. The trial judge granted the extension, finding that the HIE was the injury and that the Plaintiff was not aware or ought not to have reasonably been aware of the injury until the second expert opinion was obtained. This decision was upheld on appeal.

The decision is telling of the Court's current attitude toward extending limitation periods in medical malpractice claims. Insurers should therefore be wary of the continued exposure their practitioners may face despite the expiration of limitation periods.

Footnotes

¹ Second Reading Speech from the Hon Sarah Mitchell (Parliamentary Secretary) on behalf of the Hon. John Ajaka dated 16 March 2016

² Good Medical Practice: A Code of Conduct for Doctors in Australia, AHPRA (March 2014).

³ District Court Supplementary Rules 2014 (SA), rr 23 and 25.

⁴ District Court (Civil) Rules 2006 (SA), r 257(1).

⁵ Ibid, r 4.

⁶ [2016] SADC 35.

⁷ Emporis (2016) "Most Expensive Buildings", http://www.emporis.com/statistics/most-expensive.

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