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Table providing case note summaries for each week's topic and relevant matching legislation and elements to satisfy....

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Medical Law (NSW) topic Week 2: Consent;

Elements to satisfy 1. competence /capacity of the patient [refer to note 2.1] 2. Given voluntarily 3. Covers the procedure in question 4. Patient was informed in making the decision.

Relevant law in NSW ●

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UNESCO (2005) Universal Declaration on Bioethics and Human Rights; international endorsement of rights NSW Health Policy Directive - consent to Medical Treatment S 33(2) of the Guardianship Act 1987 (NSW) [refer to note 2.2] Exception where consent is not required: to save the life of a child/young person: section 174 (emergency) and 175 (special treatment) Children and Young Persons (Care and Protection) Act 1998 [refer to note 2.6] Mental Health Act Minors (Property and

Cases ● Re MB [1997] SCR 514 An adult (over 18) is presumed to have capacity to consent to or refuse medical treatment unless and until that presumption is rebutted ● Hunter New England Local Health District v A [2009] NSW SC 761 ● Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 ● Secretary Department of Health and Community Services v JWB and SMB [1992] HCA15 (Marion’s case) HC stated that except where sterilisation is an incidental result of surgery performed to cure a disease, parents do not have the power to authorise non-therapeutic procedure. [refer to 2.3] Held that the onus rests upon the defendant to prove that the P gave valid consent ● Re T 1993 Fam 95 (refusal of treatment)

Notes ●

Consent to treatment is distinct from the duty to warn about the potential risks of treatment (ie failure to warn can give rise to a separate cause of action) ● Patient has a right to refuse treatment ● Australian law does not recognise the foetus as a separate legal entity until it is born alive Insurance - professional indemnity insurance policies exclude any liability for exemplary damages, meaning that the practitioner becomes personally liable to pay that part of any judgment.

Contracts) Act 1970

[refer to note 2.4] Extra cases found in [2.5] Rogers v Whittaker (1992) 175 CLR 479 All medical treatment is preceded by the patient’s choice - duty to disclose all material risks to the patient; material risk: one which a reasonable person would attach significance to ● Gillick v West Norfolk and Wisbech AHA [1985] UKHL7 Court held that children may authorise medical treatment when they are old enough and mature enough to decide for themselves. [refer to 2.7] ● Re A (a child) (1993) FLC 92-402 [refer to 2.8]; gender reassignment

Emergency: Rogers v Whittaker (1992): medical treatment may be given without consent in emergencies: also doctrine of necessity.

Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 - Hospital owed the patient a duty which it could not evade by delegation to a person (in this case a neurosurgeon) who was not an employee. Ellis v Wallsend Hospital (1989) 17 NSWLR 553

[refer to 3.1] for sentinel event lists

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Week 3: negligence part 1 Elements CLA s 5B (duty,breach Section 5O defence

[refer to 3.2] for standard of proof Civil Liabiltiy Act 2002 (NSW) Plaintiff must prove - Duty of care - DoC breach - Causation - Damage (Division 3)

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Section 129 of the Health Practitioner Regulation National Law: must be registered under appropriate professional indemnity insurance (PII) Section 5B Civil

Defence s 5O of CLA - Not negligent where it was widely accepted in Australia by peer professional opinion as

Whether a risk is reasonably foreseeable and if a reasonable person in the circumstances would have taken precautions are question of fact. Types of breaches [refer to 3.4]

Liability Act 2002 (NSW) - Refer to sheet on CLA and establishing duty, breach and causation. Wyong v Shirt (1980) 146 CLR 40 - “which is not far-fetched or fanciful” Paris v Stepney Borough Council [1951] AC 367: s 5B(2)(b) - seriousness of harm Burden of taking precautions - s 5B(2)(c)- Graham Barclary Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Social utility - s 5B(2)(d) - E v Australian Red Cross Society (1991) 31 FCR 299 S 5P CLA: risk warnings by professionals. S 5P provides that s 5O does not apply to professionals giving or failing to give warnings, advice or other information in respect of the risk of death or injury S 5D(3) CLA What plaintiff would have done:

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Patient sued surgeon and hospital, after surgery she become a quadriplegic. CoA ruled that hospital was not responsible for actions of independent specialist NB v Sydney South West Area Health Service [2010] NSWDC 172 - P claimed that she was assaulted by a ward orderly in Liverpool Hospital. Trial judge = criminal conduct outside scope of terms of the ward, hospital not vicariously liable. [3.3] third party liability Lowns v Woods (1996) Aust Torts Reports - Emergency case, doctor in his home was asked to attend to a person suffering from an epileptic fit within 300 metres. Doctor refused to assist and recommended ambulance. Person = brain damage. Held duty did exist. BT v Oei [1999] NSWSC 1082 - Doctor owed a D to advise

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competent Cannot be relied upon if irrational Peer professional opinion does not have to be universally accepted to be considered widely accepted. [refer to 3.5]

Wallace v Kam: required an assessment of whether a practitioner’s liability should extend to the situation where a patient would not have undergone treatment if all material risks had been disclosed, but would have still undergone treatment at the same time and place if warned only of the risk that ultimately transpired. [refer to 3.6] The patient’s claim can only succeed if the doctor negligently failed to mention a risk that the patient would not have been prepared to accept: and that risk materialised.

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Week 4: negligence part 2

Causation:

To be determined subjectively in light of all circumstances Any statement made by P after the event as to what s/he would have done is inadmissible (unless it is against his/her interests)

S 5D CLA a. Negligence was a necessary condition of the occurrence of the harm (factual causation ‘but for’ test) and b. That it is appropriate for the scope of the negligent person’s liability to extend to the harm (Scope) Pure mental harm [refer to 4.2] Damages - S 16, no award unless NEL at least 15% of a most extreme case (non economic loss(genera))

the patient that her sexual partner was HIV positive after joint medical consultation the purpose of which was to have blood tests for HIV and STDs.

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 - The medical evidence indicated that the P would have died anyways (arsenic poison) King v South Eastern Sydney Area Health Service [2013] NSWCA - 13 year old patient, receiving experimental and radical treatment; stopped it, did not communicate and another specialist continued; = quadriplegic. Strong v Woolworths (2012) HCA 5 - ‘Necessary condition is a condition that must be present for the occurrence of the harm’ Paul v Cooke [2012] NSWSC 840 - Aneurysm in angiogram not diagnosed/detected. Factual causation made,

Novus actus interveniens Intervening act that breaks the chain of causartion.: between a negligent act and the ultimate harm. S 5D(1)(b) of the CLA. Defences: - Contributory negligence - Voluntary assumption of risk - Vicarious liability - Peer defence - s 5O of CLA - Inherent risk (s 5I of CLA) - Limitation defence Pure mental harm - s 30,31

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Past medical treatment expenses Past economic loss s 12 Future economic loss - s 12 A P is also entitled to loss of employer superannuation contributions based on the income assessed in accordance with sections 12 and 13 Personal, domestic or nursing assistance provided by agencies - s 15 [refer to 4.4]

but scope of liability did not extend to the defendant. - Rupture occurred during surgery, breach did not eventuate. Lazarevski v North Metropolitan Health Service [2019] WADC - Chest pain, Troponin level blood check not followed, SCAD develop and had serious heart attack. Court found that the ACS pathway should have been followed. Wright v Cambridge Medical Group [refer to note 4.3]

Damages for birth of a child - s 70,71 Cattanach v Melchior [2003] HCA 38 - subsequently “overturned” by CLA

Week 2: Consent Section

note

[2.1]

No capacity - Children under 14 years of age - Persons affected by mental illness - Persons affected by dementia, brain damage, intellectual disability - Persons temporarily or permanently impaired by drugs or alcohol

[2.2]

“A person is incapable of giving consent to the carrying out of medical or dental treatment if the person: a. Is incapable of understanding the general nature and effect of the proposed treatment, or b. Is incapable of indicating whether or not he or she consents or does not consent to the treatment being carried out.

[2.3]

Marion’s case - guiding principles ● Sterilisation procedures should never be authorised unless “some compelling justification is identified and demonstrated” (Marion, at 268) ● To come to the view that a sterilisation procedure is in a child’s best interests the court has to be satisfied that sterilisation is a step of “last resort”, or in other words that “alternative and less invasive procedures have all failed or it is certain that no other procedure or treatment will work” (Marion at 259-260)

[2.4]

● Re T 1993 Fam 95 (refusal of treatment) English court of appeal - Denied an appeal on behalf of a critically ill, unconscious woman who had been given a blood transfusion upon court order after having previously refused to consent to one. - Mother; Jehovah’s Witness, had “apparently” influenced the decision (undue influence? = equitable matter), daughter was not. - Court held that: thought every adult has the right and capacity to refuse medical treatment, this presumption of capacity can be overridden upon a determination that factors such as confusion, unconsciousness, fatigue or shock

[2.5]

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Murray v McMurchy [1949] 2 DLR 442 ○ Sterilisation procedure performed when consent only given for caesarean section. Court held that the sterilisation was “convenient” rather than “necessary” Dean v Phung [2012] NSWSC 223 ○ A dentist who was found to be motivated by financial gain, carried out unnecessary dental treatment. Mr Dean’s consent was found to pertain to only necessary treatment, and not to the additional unnecessary work. Treatment = trespass to person ○ 53 consultations ○ Alternative similar case: White v Johnson [2015] NSWCA 18 Ljubic v Armellin [2009] ACTSC 21 ○ In which a woman was held to have consented to a hysterectomy, but not to the removal of her ovaries. Reeves v The Queen [2013] HCA 57 ○ Interference = criminal assault ○ Gynaecologist, convicted of maliciously inflicting GBH with intent. He performed an operation to remove a cancerous lesion on the patient’s vagina but also removed the entire vulva and clitoris

[2.6]

S 174 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - A medical practitioner may carry out medical treatment on a child (a person aged under 16 years) or young person (a person aged 16 or 17) without the consent of the child or young person… if the medical practitioner is of the opinion that it is necessary, as a matter of urgency … in order to save his or her life or to prevent serious damage to his or her health.

[2.7]

Gillick competence test The aim of Gillick competence is to reflect the transition of a child to adulthood. Legal competence to make decisions is conditional on the child gradually acquiring both: 1. Maturity; takes account of the child’s experiences and the child’s ability to manage influences 2. Intelligence; child’s understanding, ability to weigh risk and benefit, consideration of longer term factors

[2.8]

A case involving a 14 year old girl, N was conceived as a genetic female but was masculinised due to an abnormality in the adrenal gland. Was approved by court (despite lack of Gillick competency) due to danger to her health if not approved.

Re Alex: Hormoral Treatment for Gender Identity Dysphoria [2004] FamCA 297 (13 April 2004) Alex’s best interests: - Order permitting Alex to commence the first stage of hormonal treatment - the reversible oestrogen and progesterone therapy - The urgency of treatment is such that it should begin as soon as possible - If treatment is delayed and she has to go to high school with the presence of periods and increasingly feminised body, [he] will be extremely distressed and disadvantaged by that.

Week 3: negligence [3.1]

Sentinel event list 1. Surgery or other invasive procedure performed on the wrong site resulting in serious harm or death 2. Surgery or other invasive procedure performed on the wrong patient resulting in serious harm or death 3. Wrong surgical or other invasive procedure performed on a patient resulting in serious harm or death 4. Unintended retention of a foreign objectb in a patient after surgery or other invasive procedure resulting in serious harm or death 5. Haemolytic blood transfusion reaction resulting from ABO incompatibility resulting in serious harm or death.

[3.2]

Civil standard: balance of probabilities (s 5E CLA) Criminal: beyond a reasonable doubt. Onus always rests on the plaintiff.

[3.3]

Third party liability - Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon [2014] HCA 44 - Confirmed that health authorities’ duty of care does not extend to third parties. - The main area of dispute, among others, was the allegation raised by the third parties that the hospital and doctor did not exercise reasonable professional care and skill in deciding to discharge the patient into the care of his friend for the journey to Victoria - The HCA unanimously allowed the appeal from a decision of the CoA. held that Hunter and New England Local Health District and the treating doctor did not owe DoC to relatives of a man killed by a

mentally ill patient who had been discharged from the hospital. [3.4]

Types of breaches - Failure to examine, treat (adequately or at all), diagnose, advise or warn a patient of material risks associated with treatment, failure to give information to a patient about their condition, follow up, adopt recognised precaution, communicate with other professionals, refer to a specialist where appropriate, not keeping up to date with the current state of knowledge, supervise juniors, poor delegation, and to check understanding (non-exhaustive list)

Negligent performance of hysterectomy resulting in damage to patient's ureter. •Kite v Malycha (1998) 71 SASR 321 Failure to follow-up on cytology report following biopsy and act on it, which resulted in failure to diagnose breast cancer. •Khan v Rathjen [2016] NSWDC 139 GP failed to properly assess and diagnose the plaintiff's hand injury and failed to refer him to an emergency department or hand surgeon. Breach of Duty of Care (Information cases) •Olbourne v Wolf [2004] NSWCA 141 Cosmetic surgeon failed to warn of infection and scarring risks from breast reduction surgery. •Shead v Hooley [2000] NSWCA 362 Surgeon failed to warn of risk of gastroparesis with antrectomy and vagotomy procedure.

[3.5]

Relevant cases for section 5O defence

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Dobler v Halverson (2007) 70 NSWLR 151 Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 South Western Sydney Local Health District v Gould [2018] NSWCA 69

In the medical context, a failure to warn case arises in the context of a failure to warn of a ‘material risk A plaintiff is entitled to recover compensation in this context if they can establish the following elements: ● That they were not warned of a material risk; ● That the material risk of which they were not warned eventuated; and ● That if they had been warned of the material risk, they would not have pursued the particular course of treatment which gave rise to the risk. Morocz v Marshman [2016] NSWCA 202 ● It is uncontroversial that doctors have a duty to warn patients of material risks. The case reinforces that they should use language that is meaningful to the patient when they do so. Doctors are not required to use scientific terms to explain a risk where simple terms are preferable. ● Case confirms that provided that they complied with their duty to warn of the relevant risks, doctors are not required to second-guess a patient’s decision to undergo elective surgery. ● While a doctor’s personal opinion may be that the potentially life threatening risks of such procedures outweigh the necessity of the (elective) surgery, a doctor is not required to express this opinion or refuse to perform the operation. ● On ethical grounds a doctor may decide not to perform the surgery, but legally they can proceed with it. This has particular relevance to cosmetic procedures. Jambrovic v Day [2017] NSWSC 1468 ● The plaintiff, Mr Jambrovic, elected to undergo surgery at the hands of the defendant, a neurosurgeon, which the defendant had never previously performed. The surgical procedure failed and the plaintiff suffered catastrophic complications ● The court found that it was unreasonable for the defendant to have failed to disclose to the P that he had not previously performed the procedure. ● Dr Day should also undoubtedly have disclosed that he had neither the available training nor observed the difficult procedure he recommended.

4.1

Causation: if the injury, loss or damage would have happened regardless of the breach of the DoC, then no compensation can be claimed.

[4.2]

Pure mental harm (police case) Carangelo v The State of NSW [2016] NSWCA 126 - A former employee of NSW Police argued that there had been a failure to take reasonable precautions against the risk of his suffering psychiatric injury at two significant points in the course of his career. He argued that if he had been provided pastoral care and referred to a psychiatrist he would not have suffered the psychiatric injury he ultimately did. - The evidence identified that he had experienced many stressful and traumatic incidents over the 25 years that he had served as a police officer. - The court was not satisfied the negligent failure of the defendant to refer the P for psychiatric treatment was causative of his injuries. The P argued that this was an exceptional case for the purpose of s 5D(2). - The court did not accept it was an exceptional case such that the responsibility for harm suffered by the P should be imposed on the defendant.

[4.3]

Wright v Cambridge Medical Group [2012] 3 WLR (English CoA) - An infant developed a bacterial infection following discharge from hospital (for the treatment of chicken pox), causing the development of osetomyelitis in her hip bone. - Three days after discharge from hospital, the infant’s mother telephoned a GP for medical advice however the GP did not review the infant, nor did the GP refer the infant for a review. - The infant’s condition deteriorated over the ensuing days and she was referred to another hospital where she received inadequate and further delayed treatment, resulting in permanent injury to her hip. - By 3:2 majority, the Court of Appeal rejected the GP clinic’s argument that the hospital’s failure to render proper treatment was an intervening act that broke the chain of causation because “it was not such an egregious event in terms of degree or unusualness of the negligence or the period of time during which it lasted, to defeat or to destroy...