LAWS3452/LAWS5152
Medical Law
Semester 2, 2022
Reading Guide
Professor Roger Magnusson
THE UNIVERSITY OF SYDNEY LAW SCHOOL
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Lecturer name and contact details
Title/Name
Prof. Roger Magnusson
Address
Room 502, Sydney Law School, Eastern Ave (F10)
Phone
9351 0211
Email
roger.magnusson@sydney.edu.au
Preferred method of communication
If contacting me by email, please include your name and student identification number.
Please make it clear that you are enrolled in Medical Law.
Lecture dates and times
Days
Time and Venue
Mon 11-1
Lecture
Tues 11-1 (seminar, F2F stream)
Law Annex SR 100
Thurs 11-1 (seminar, Zoom stream)
See Canvas page for Zoom links
Please refer to the relevant (LLB, JD) timetable via the Student Portal page.
NB: Please keep an eye on your Canvas LMS site for any announcements in relation to
lectures and venues, as last-minute changes can and do occur.
Teaching Methods
This unit of study outline is a companion to the unit of study materials. Students are expected to
read prior to class, in order to maximise the opportunities for discussion and critical reflection in
class. The unit of study will be taught in a combination of mini-lecture, and interactive formats.
Students are reminded to bring the relevant volume of unit of study materials to class each day.
Reading materials
Required reading
There is no prescribed text for this course. Course materials will be issued
from the University Copy Centre. It is recommended that you order your
student notes online to avoid any queue.
Recommended supplementary reading
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I recommend that you purchase an Australian medical law text for reference and further
explanation of the (sometimes quite complex) material we will cover in class.
Current Australian medical law texts include:
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Kerridge, Lowe & Stewart, Ethics and Law for the Health Professions, Federation
Press, 4th ed., 2013.
Anne-Maree Farrell, John Devereux, Isabel Karpin, Penelope Weller, Health Law:
Frameworks and Context, Cambridge University Press, 2017.
Janine McIlwraith, Bill Maddon, Health Care & the Law, 6th ed., Thomson 2014.
Bill Maddon, Janine McIlwraith, Australian Medical Liability, 2nd ed., LexisNexis, 2013.
White, McDonald, Willmot (eds) 2nd ed., Health Law in Australia, Thomson Reuters,
2014.
Legislation: Students are also expected to access statutory material listed in the Reading
Guide. Some statutory material has been extracted in the course materials. Statutory
materials that are listed in the reading guide but are not extracted in the course materials can
be accessed via the internet.
Other useful materials
How do I find legal resources on health law?
The University of Sydney’s library guide for health law links to a wide range of useful
sources: http://libguides.library.usyd.edu.au/content.php?pid=379936&sid=3112718
Sydney Health Law (the website of Sydney Law School’s health law centre) contains a range
of useful materials: http://sydney.edu.au/law/health/ These include Ethics & Health Law
News: http://ehln.org/ , and the Sydney Health Law blog: https://sydneyhealthlaw.com/
CCH publish the following looseleaf services (both of which are in the Law Library):
• Australian Health and Medical Law Reporter
• Australian Professional Liability - Medical
The Law Library also holds the following journals:
• American Journal of Law and Medicine
• Australian Health Law Bulletin
• Bioethics
• European Journal of Health Law
• International Digest of Health Legislation
• Journal of Bioethical Inquiry [the journal of the Australasian Association for Bioethics &
Health Law, which you can also join]
• Journal of Contemporary Health Law and Policy
• Journal of Law and Medicine
• Journal of Law, Medicine and Ethics
• Kennedy Institute of Ethics Journal
• Lloyd’s Law Reports Medical
• Medicine, Science and the Law
• Medical Law Review
• Medico-Legal Journal
Other branch libraries of the University hold a variety of medical journals including:
• The Medical Journal of Australia
• The British Medical Journal
• New England Journal of Medicine
• Lancet
• Journal of the American Medical Association (JAMA)
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Summary of modules in this unit
VOLUME 1
Module 1:
Introduction to health and medical law
Module 2:
Consent to medical treatment
VOLUME 2
Module 3:
Professional liability
Module 4:
Reproduction
VOLUME 3
Module 5:
Withdrawal of treatment, end of life decision-making, and
assisted dying
SUPPLEMENTARY MATERIALS*
*Note that the supplementary modules will not be covered in class. However,
some issues from these modules may arise in modules 1-5. Some essay
topics may also relate to modules 6-7. The assignments may also raise
issues that relate to modules 6-7.
Module 6:
Reproductive technology
Module 7:
Privacy, confidentiality & access to medical information
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Medical Law
Reading Guide, 2022
[Vol 1]
Module 1
INTRODUCTION TO HEALTH & MEDICAL LAW
This introductory module contains readings about the social context of the
provision of health care. As you read the materials, be aware of the influences and
trends in Australian health care. Health care, and the law regulating it, is
increasingly controversial, both in a political and an ethical sense, and so an
understanding of the social environment of health care is important. By the end of
this module you should:
o be familiar with the major social trends that have impacted on the development
of bioethics;
o be able to discuss the social trends and issues that affect the ways in which we
think about health and health care;
o be familiar with the main elements in professional codes of ethics;
o be familiar with current trends and disparities in Australian health care;
o be able to discuss some current topical issues in Australian health care.
Reality Check: the stuff of medical law:
o Some recent news clippings and materials to introduce you to the range of
medical/clinical issues that law is increasingly being called on consider:
We begin this module by considering the scope of health and medical law, and the
social changes that have helped to create this legal speciality.
1.1
Terms & concepts:
o Medical law; health law; bioethics; public health law; international health law;
global health governance
o Roger Magnusson, “Evolution of Health Law: from ‘Law and Medicine’ to ‘Global
Health Governance’” JurisDiction, Spring, 2012, pp 6-8.
1.2
The current and future concerns of medical law
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In 1990, Professor Ian Kennedy, an English academic pioneer of medical law,
predicted the future of the field. We’ll be working through a series of materials to
demonstrate how Professor Kennedy’s predictions have become reality. In doing
so, you’ll capture a sense of the field, and how it intersects with ethics and politics.
In doing so, we’ll also be previewing the syllabus for this unit.
o Ian Kennedy, “The Medical Frontier” in L Howe & A Wain (eds), Predicting the
Future (1993), pp 96-117. Note in particular what Prof. Kennedy identifies as
“problem areas” for the future.
1.3
Professional Regulation and Professional Ethics
To what extent are the health professions governed by ethical codes, as distinct
from law? In what ways does the medical profession govern itself, through the
ethical standards it aspires to and requires of registered medical practitioners?
o Australian Medical Association, Code of Ethics (2006). Is there an overlap
between the AMA’s Code, and the substantive content of “medical law”?
While the focus of this unit is legal causes of action, in this module you’ll also be
introduced to the professional regulation of the health professions, which takes
place within a statutory framework.
o Health Practitioner Regulation National Law (NSW) No 86a [extracts].
o Voluntary Assisted Dying Act 2017 (Vic) ss 8, 75.
o Health Care Complaints Commission v Blackstock [2020] NSWCATOD 110
(extracts). Why was this case included in the syllabus?
o Good Medical Practice: A Code of Conduct for Doctors in Australia, developed by
a working party of the Australian Medical Council on behalf of the medical
boards of the Australian states and territories, March 2014 [not extracted in the
materials]. http://www.medicalboard.gov.au/Codes-Guidelines-Policies/Codeof-conduct.aspx
Case study: regulation of cosmetic surgery:
Cosmetic surgery is an area where, in the absence of legislation, professional
standards have a significant role to play:
o Medical Board of Australia, Press release, 09 May 2016 on the Board’s
guidelines for medical practitioners who perform cosmetic medical and surgical
procedures. The Guidelines (effective from 1 October 2016) can be found at:
https://www.medicalboard.gov.au/codes-guidelines-policies/code-ofconduct.aspx ; http://www.medicalboard.gov.au/Codes-Guidelines-Policies.aspx
o Kate Brown, “Cosmetic surgery under the microscope”, 28 July 2014:
https://www.choice.com.au/health-and-body/beauty-and-personal-care/skincare-and-cosmetics/articles/cosmetic-surgery-not-all-pretty
o Sydneyhealthlaw.com is the blog of the Sydney Health Law Centre. You are
encouraged to read the blog, which includes posts on a wide range of health law
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matters, particularly in the fields of medical law, public health law, and global
health governance.
Further Reading:
• Re Ryder [2020] NSWSC 895.
• Alon Januszewicz, Ben Schwarer, “Parens Patriae: When does a child’s best interests
supersede a parent’s right to make decisions on their behalf? – Re Ryder” Australian
Health Law Bulletin, October 2020, pp 135-137.
• Turner v Blackstock [2019] NSWDC 102.
• Leanna Darvall, Medicine, Law and Social Change: The Impact of Bioethics, Feminism
and Rights Movements on Medical Decision-Making, pp 7-21.
• Director Clinical Services, Child & Adolescent Health Services and Kiszko [2016] FCWA
75.
• George Annas, “Doctors, Patients, and Lawyers – Two Centuries of Health Law” (2012)
367 New England Journal of Medicine 445-450.
• Wendy Mariner, “Towards an Architecture of Health Law” (2009) 35 American Journal
of Law & Medicine 67-87.
• Lawrence Gostin, Allyn Taylor, “Global Health Law: A Definition and Grand Challenges”
(2008) 1 Public Health Ethics 53-63.
• Clare Skinner et al on behalf of the Hospital Reform Group: “Reforming New South
Wales Public Hospitals: An Assessment of the Garling Inquiry” (2009) 190 Medical
Journal of Australia 78-79.
• Tom L Beauchamp & James F Childress, Principles of Biomedical Ethics, 4th ed, 1994,
Oxford University Press.
• Max Charlesworth, Bioethics in a Liberal Society, 1993, Cambridge University Press.
• Susan Wolf, “Shifting Paradigms in Bioethics and Health Law: the Rise of a New
Pragmatism” (1994) 20 American Journal of Law & Medicine 395
• Why study medical law? See George Annas, “Health Law at the Turn of the Century:
From White Dwarf to Red Giant” (1989) 21 Connecticut Law Review 551.
• Where is medical law headed? M. Brazier & N. Glover, “Does Medical Law Have a
Future?” in P. Birks (ed), Law’s Future(s), 2000, Oxford: Hart, p 371.
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Module 2
CONSENT TO MEDICAL TREATMENT
This unit deals with consent to medical treatment. Note that a number of issues
may arise here, including:
− a patient’s competence to consent to the treatment at all (which may arise, for
example, when the patient has an intellectual disability or is a minor);
− the requirements for valid consent;
− the lawfulness of treatment without consent;
− advice on the risks of treatment.
By the end of this module you should:
o understand the relevance of competence determinations in the provision of
consent to medical treatment;
o understand the legal and ethical reasons why consent is important in health
care;
o be familiar with Australian case law on minors and medical treatment;
o be familiar with the limits of parental authority to consent to medical treatment
in Australia;
o be familiar with relevant NSW statutory provisions on minors and medical
treatment;
o be familiar with relevant provisions in the Guardianship Act 1987 (NSW) relating
to medical treatment, and understand the difference between minor treatment,
major treatment and special treatment;
o be familiar with relevant overseas case law on the right of adult patients to
refuse medical treatment and be able to provide a critical analysis of the
relevance of that case law for Australia;
o be familiar with Australian case law on advice on the risks of treatment and be
able to articulate the relevance of this to consent issues;
o be able to define “material risk” in relation to risks of proposed treatment.
Reality Check:
o Amy Corderoy, “Pregnant Jehovah’s Witness’ Decision to Refuse Treatment
“Harrowing” for Hospital Staff After Mother and Baby Die” Sydney Morning
Herald, 6 April 2015.
o “Muslim Man Loses High Court Bid to Have Sons Circumcised” The Guardian, 19
April 2016.
o “Piercing Argument”, Sydney Morning Herald, 15 March 2011. Piercing your
child’s ears. Is it child abuse?
o Alana Schetzer, “It felt like a violation of my rights’: the issue of the consent
during childbirth’, The Sydney Morning Herald, 22 March 2019.
o How young is too young for plastic surgery? Melinda Tankard Reist, “Body Fix
the Wrong Answer for Teens” Sydney Morning Herald, 9 May 2008.
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2.1
Consent to Medical Treatment involving Minors
o Secretary, Department of Health and Community Services v JWB and SMB (1992)
175 CLR 218 (“Marion’s case”).
o P v P (1994) 120 ALR 545 (noted briefly).
We kick off this topic by considering the High Court case of Re Marion. We will use
this important case to develop a category-by-category approach to consent cases,
including: children; intellectually disabled children; is sterilisation a special case?
We also consider conflicts between state & federal law.
The regulation of non-therapeutic sterilisations is complex and also involves
legislation: the Children and Young Persons Care and Protection Act 1998 (NSW) [for
persons 15 years or less] and the Guardianship Act 1987 (NSW) [for persons 16
years or more]. [We’ll return to the GA provisions below in 2.1].
o Re Angela (Special Medical Procedure) [2010] Fam CA 98 (16 February 2010,
Justice Cronin). A good illustration of the Family Court exercising its powers
under s 67ZC.
o Minors (Property and Contracts) Act 1970 (NSW) s 49. This section is relevant
when considering a teenager’s right to consent to medical treatment.
Are there other medical procedures, besides a “non-therapeutic sterilisation” that is
beyond parental responsibility? We’ll consider, firstly, bone marrow donations by
children, gender re-assignment, and abortion involving minors.
o Re Kelvin [2017] FamCAFC 258.
o Re Imogen (No 6) [2020] FamCA 761.
Quite apart from common law restrictions on parental responsibility, legislation
may directly discourage or prohibit certain procedures, such as cosmetic surgery, on
children.
Female (and male) genital mutiliation:
o Public Health Act 2005 (Qld) ss. 213A-213D.
o Criminal Code (Qld) s 323A-323B (female genital mutiliation)
o Public Health Regulation 2005 (Qld) s 12F
o “Unkind Cut is ‘Sexual Assault’” Canberra Times 15 December 2000. If medical
treatment on children, to be lawful, must be in the child’s best interests, how is
circumcision lawful?
o Re Baby D (No. 2) [2011] FamCA 176 (briefly noted)[not extracted in materials]
(considers whether removal of life-supporting treatment from a neonate is
beyond parental responsibility (requires court approval)?
Refusal of treatment by life-preserving treatment by children:
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o The Sydney Children’s Hospital Network v X [2013] NSWSC 368. This case raises
the issue of children who refuse life-preserving medical treatment. The order of
Gzell J was upheld on appeal: X v Sydney Children’s Hospitals Network [2013]
NSWCA 320.
o Human Tissue Act 1982 (Vic) s 24.
o Mercy Hospitals Victoria Ltd v D1 [2018] VSC 519 (briefly noted).
For medical treatment involving children, remember to factor in the following
legislation:
o Minors (Property and Contracts) Act 1970 (NSW) s 49.
o Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 173-175.
o Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 23, 27.
o “Judge Forces Girl Aged 15 to Have Heart Transplant”, The Times, 16 July 1999 &
“I Acted Out of Love, Says Father of Heart Op Girl”, The Times 17 July 1999.
o Human Tissue Act 1982 (Vic) s 24.
o In Re Heather [2003] NSWSC 532, the court authorised chemotherapy to a 12year old child for a malignant ovarian tumour. The child’s parents objected to
the chemotherapy, subjecting her to ozone or oxygen therapy instead. This case
illustrates the court using its parens patriae jurisdiction to uphold the child’s
best interests, over the objections of both the parents and the child [not
extracted in materials].
2.2
Adult (Incompetent) Patients
We begin this topic by considering several different forms of substituted decisionmaking, including guardianship orders and the concept of an enduring guardian.
Part V of the Guardianship Act 1987 provides a statutory framework for authorising
medical treatment when a person (16 years or older) is incapable of giving consent.
Note the concept of a “person responsible” and the circumstances in which
treatment can be authorised without consent. Read the legislation carefully.
o Guardianship Act 1987 (NSW), selected provisions.
o Guardianship Regulations 2016 (NSW), selected provisions.
o FI v Public Guardian [2008] NSWADT 263. What does this case stand for?
We will note the NSW Law Reform Commission’s wide-ranging proposals for reform
of the Guardianship Act 1987 and the new concepts it would introduce.
http://www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Guardian
ship/Report-145.aspx
Before moving on, we’ll review and apply the law we’ve learned through some
problem scenarios.
Non-consensual sperm donation: This has given rise to a surprising number of cases
o Focus case: Jocelyn Edwards; Re the estate of the late Mark Edwards [2011]
NSWSC 478.
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o
o
o
o
2.3
Briefly noted: MAW v Western Sydney Area Health Service [2000] NSWSC 358
Human Tissue Act 1983 (NSW) (extracts).
Assisted Reproductive Technology Act 2007 (NSW) (extracts).
Guardianship and Administration Act 2000 (Qld) s 69.
Refusal of Treatment
We begin this topic by distinguishing battery from negligence and identifying
criteria relevant to a consideration of whether a patient has capacity to consent.
We then consider the principles that emerge from a number of cases on treatment
refusal:
o Re T [1992] 4 All ER 649 (briefly noted) [not extracted in materials]
o Malette v Shulman (1990) 67 DLR (4th) 321 (Ontario CA) [not extracted in
materials]
o Re C (adult: refusal of medical treatment) [1994] 1 All ER 819.
What is the status of the foetus, and does it affect a woman’s right to selfdetermination?
o St George’s Healthcare NHS Trust v S; R v Collins & Ors, ex parte S [1998] 3 All ER
673
Following birth, courts will intervene to restrain parents from prejudicing or
harming the health of their child:
o Re Elm [2006] NSWSC 1137
o Director-General, Department of Community Services; Re Jules [2008] NSWSC
1193 (briefly noted)
o Sydney Children's Hospital Network, The Application of [2018] NSWSC 1259 (23 July
2018)
Before moving on, we’ll review and apply the law we’ve learned with a problem
scenario. Then we’ll consider a range of cases that explore the dividing line
between consent, on the one hand, and civil battery, negligence, and also criminal
offences on the other.
Chatterton v Gerson [1981] QB 432 (briefly noted)
Appleton v Garrett (1999) 6 Journal of Law and Medicine 229.
Dean v Phung [2012] NSWCA 223.
Tinnock v Murrumbidgee Local Health District (No 6) [2017] NSWSC 1003, at
[12]-[29].
o Reeves v The Queen [2013] HCA 57.
o
o
o
o
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2.4
Advice on the Risks of Treatment
Module 2 is on consent to treatment: ensuring that there is consent and that it is
adequately informed. Lack of consent may expose a health professional to battery
(or worse), lack of adequately informed consent may give rise liability in negligence.
Please note the overlap between cases in heading 2.4 and 3.1.
o Bolam v Friern Hospital Management Committee [1957] 2 All ER 118. Bolam is a
classic of medical jurisprudence, but remember to apply Australian sources to
Australian legal sources. Make sure you understand the tests for breach of duty
of care that apply in an advice negligence claim.
A leading High Court case on advice negligence:
o Rogers v Whitaker [1992] 175 CLR 479. After considering this case we’ll
consider ways in which a medical practitioner might avoid liability for failing to
disclose treatment risk(s).
o Montgomery v Lanarkshire Health Board [2015] UKSC 11 (briefly noted) [leading
UK case, not extracted in materials]
o Jambrovic v Day [2017] NSWSC 1468. In class I’ll point out that this case is
important for three reasons: listen up.
o Daniel Sokol, Rupen Dattani, “How Should Surgeons Obtain Consent During the
Covid-19 Pandemic?” BMJ 2020; 369:m2539.
Proving causation in advice negligence cases. Remember: in NSW, proof of
causation is governed by s 5D Civil Liability Act 2002 (NSW).
o Chappel v Hart (1998) 156 ALR 517: the judgments of Gaudron J, Gummow J and
Hayne J are extracted. Students are also expected to familiarise themselves
with the judgments of McHugh J and Kirby J. You will need to understand and
be able to clearly explain differences between the minority and majority
judgments.
o Wallace v Kam [2013] HCA 19.
o Civil Liability Act 2002 (NSW) [selected extracts]
Further Reading:
• John Marrie et al., “Vaccination of Young people from 12 Years of Age for Covid-19 Against
Parents’ Wishes” Medical Journal of Australia 2022; 216(9):455-457.
• Noone v Genea [2020] NSWSC 1860.
• Morocz v Marshman [2015] NSWSC 325.
• Rebekah McWhirter, “Informed Consent and Performance Data: Clinician Experience as a
Material Risk” (2017) 40(2) UNSWLJ 566-589.
• Bell and A v The Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Claim by
Bell, born female, against the NHS Trust for prescribing her puberty-suppressing drugs; she
later underwent surgery and took male hormones to transition to a male gender).
https://www.bailii.org/ew/cases/EWHC/Admin/2020/3274.html This decision, holding that
a child under 16 could never consent to puberty-suppressing drugs, was reversed on appeal:
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Bell and A v The Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363:
https://www.judiciary.uk/wp-content/uploads/2021/09/Bell-v-Tavistock-judgment170921.pdf ; see also https://sydneyhealthlaw.com/2021/11/11/the-courts-role-intreatment-for-childhood-gender-dysphoria-recent-updates/
Re Declaration Regarding Medical Treatment for “A” [2020] QSC 389 (treatment for gender
dysphoria approved by the Qld Supreme Court in its parens patriae jurisdiction).
Patrick Parkinson, Philip Morris, “Legal Restrictions to Cross-Sex Hormone Treatment for
Under 18s” InSight, 26 July 2021: https://insightplus.mja.com.au/2021/27/legal-restrictionsto-cross-sex-hormone-treatment-for-under-18s/#comment263619?janus_id=roger.magnusson@sydney.edu.au
In the Matter of the Application by Vernon [2020] NSWSC 608 (another posthumous sperm
donation case).
NSW Health, Consent to medical and healthcare treatment manual (2020):
https://www.health.nsw.gov.au/policies/manuals/Pages/consent-manual.aspx
P v Melbourne Health [2019] VSC 500 (another posthumous sperm donation case).
Ketil Slagstad, “The political nature of sex – transgender in the history of medicine” New
England Journal of Medicine, February 3, 2021; DOI: 10.1056/NEJMms2029814.
Christopher Mills, “Australia after Cresswell and Chapman: A Legal and Regulatory Paradox,
or an Opportunity for Uniformity?” Journal of Law and Medicine 2020; 27:741-761 (Australiawide review of posthumous use of sperm cases).
Ada Cheung et al., “Position statement on the hormonal management of adult transgender
and gender diverse individuals” Medical Journal of Australia 2019; 211(3):127-133.
Michelle Telfer et al., “Australian standards of care and treatment guidelines for transgender
and gender diverse children and adolescents” Medical Journal of Australia, 18 June 2018:
https://doi.org/10.5694/mja17.01044
Bell v The Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin):
https://www.judiciary.uk/wp-content/uploads/2020/12/Bell-v-Tavistock-Judgment.pdf (the
High Court ruled that teenagers under 16 years lack capacity to consent to pubertysupressing drugs), and that even above 16 years, court approval).
Alon Januszewicz, Chris Reily, “Any extent” of injury can amount to Female Genital
Mutilation – R v A2; R v Magennis; R v Vaziri, Australian Health Law Bulletin, July 2020, pp
45-48.
COVIDSurg Collaborative, “Mortality and Pulmonary Complications in Patients Undergoing
Surgery with Perioperative SARS-CoV-2 Infection: an International Cohort Study” Lancet
2020; 396:27-38.
Nathan Hodson, Joshua Parker, “The Ethical Case for Non-directed Postmortem Sperm
Donation” Journal of Medical Ethics 2020; 46:489-492.
Emma Goldberg, “She didn’t want a pelvic examination: she received one anyway”. New
York Times, 17 February 2020: https://www.nytimes.com/2020/02/17/health/pelvicmedical-exam-unconscious.html
Recent cases involving blood transfusions involving minors who are Jehovah’s
Witnesses: Sydney Children’s Hospital Network, Re A [2018] NSWSC 1358; for a
separate case heard in the Victorian Supreme Court involving a teenage Jehovah’s
Witness who was 38 weeks pregnant, see: Mercy Hospitals Victoria v D1 [2018] VSC
519: http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2018/519.html.
Chapman v South Eastern Sydney Local Health District [2018] NSWSC 1231 (posthumous use
of sperm case).
Bruce Arnold, Wendy Bonython, “Still a Vexed Question: Post-Mortem Gamete
Removal and use” Australian Health Law Bulletin, September 2018, pp 134-139.
R v BM [2018] EWCA 560 (tattooist and body piercer charged with wounding with
intent to do grievous bodily harm under Offences Against the Person Act 1861 s 16;
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conviction upheld); R Olle, “Body Modification: Consent and Regulation” Australian
Health Law Bulletin, July 2018, pp 94
Re Kelvin [2017] Fam CAFC 258 (gender dysphoria).
R v Hutchinson [2014] 1 SCR 346 (Canadian Supreme Court sexual assault case involving
an accused who tampered with a condom)
Skye O’Dwyer, “’Treatment’ of Intersex Children as a Special Medical Procedure” (2017)
24 Journal of Law and Medicine 870.
Tracey Carver, Malcolm Smith, “Medical Negligence, Causation and Liability for Nondisclosure of Risk: A Post-Wallace Framework and Critique” (2014) 37(3) UNSW Law
Journal 972.
Re E (Medical treatment: Anorexia) [2012] EWHC 1639 (Court of Protection).
Mike O’Connor, “The Treatment of Intersex and the Problem of Delay: The Australian
Senate Inquiry into Intersex Surgery and Conflicting Human Rights for Children” (2016)
23 Journal of Law and Medicine 531.
Roblin v The Public Trustee for the ACT [2015] ACTSC 100 (24 April 2015).
Ping Yuan v Da Yong Chen [2015] NSWSC 932 (14 July 2015).
Director-General, Department of Community Services; Re Jules [2008] NSWSC 1193:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2008/1193.html
Central Queensland Hospital and Health Service v Q [2016] QSC 89 (26 April 2016),
following State of Qld v B [2008] QSC 231.
Melissa Davey, “Parents Likely to Block Girlfriend’s Attempt to Access Sperm from Dead
Son” Guardian Australia, 1 June 2016:
https://www.theguardian.com/science/2016/jun/01/parents-likely-to-block-girlfriendsattempt-to-access-sperm-from-dead-son
Ping Yuan v Da Yong Chen [2015] NSWSC 932 (deciding, but then retreating from the
position that a “person responsible” under Guardianship Act 1987 (NSW) can consent
to extraction of semen on behalf of an incompetent person).
Ben Croon et al., “Post-mortem Sperm Retrieval in Australia” Australian and New
Zealand Journal of Obstetrics and Gynaecology 2012; 52(5): 487-90.
Rosenberg v Percival [2001] 8 HCA 18; (2001) 178 ALR 577 [be aware that this case
discusses how to apply the “objective” limb of the materiality test derived from Rogers
v Whitaker]
Claudia Hirst et al., “Assault and Batter Claim Against Dentist Who Allegedly Peformed
Wholly Unnecessary Dental Treatment…” Australian Health Law Bulletin, June 2015, pp
86-88.
White v Johnston [2015] NSWCA 18 (whether the provision of unnecessary dental
treatment to an elderly patient constituted assault).
Felicity Bell, “Children with Gender Dysphoria and the Jurisdiction of the Family Court”
UNSW Law Journal 2015; 38(2): 426-454.
Liz Babonnick, “A District Health Board v Dee: The Treatment of Pediatric HIV Against
Parental Wishes” Australian Health Law Bulletin, June 2015, pp 199-102.
John Phillips, David Wendler, “Clarifying Substituted Judgment: the Endorsed Life
Approach” Journal of Medical Ethics 2015; 41: 723-730 [this issue of the JME contains
many articles discussing and evaluating substituted decision-making].
Montgomery v Lanarkshire Health Board [2015] UKDC 11
Lisa Rosenbaum, “The Paternalism Preference – Choosing Unshared Decision Making”
New England Journal of Medicine 2015; 373: 589-592.
Michael Williams, John Chesterman, Phil Grano, “Re Jamie (No 2): A Positive
Development for Transgender Young People” (2014) 22 Journal of Law and Medicine
90.
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Fiona Kelly, “Australian Children Living with Gender Dysphoria: Does the Family Court
have a Role to Play?” (2014) 22 Journal of Law and Medicine 105.
Re Colin: (Gender Dysphoria) [2014] FamCA 449 (27 June 2014).
Senate Community Affairs References Committee, Involuntary and coerced sterilisation
of people with disabilities in Australia (July 2013):
http://www.aph.gov.au/parliamentary_business/committees/senate/community_affai
rs/involuntary_sterilisation/first_report
Re Jamie (No 2) [2013] FamCAFC 110 (31 July 2013).
Re H AE (No. 3) [2013] SASR 196 (one of several cases relating to possession of male
sperm following his death for use in an assisted reproductive procedure in the ACT).
Anne Suskind, “Protecting Consumers from Themselves: Calls to Regulate the Retail
Surgery Industry” (2014) 52(1) Law Society Journal 20-21.
Nicholas Lennings, “Children and Refusal of Medical Treatment: in Urgent Need of
Reform” (2013) 21 Journal of Law and Medicine 122.
Lyria Moses, “Property in Sperm: Re the Estate of Edwards [2011] NSWSC 478 (2011) 21
Property Law Review 135.
Lesley Naik, “When is the Sterilisation of an Intellectually Disabled Child ‘Therapeutic’?
A Practical Analysis of the Legal Requirement to Seek Court Authorisation” (2012) 20
Journal of Law and Medicine 453.
Re Jamie [2013] FamCAFC 110 (31 July 2013) (childhood gender identity disorder,
Family Court’s welfare jurisdiction and the application of Re Marion).
Bazley v Wesley Monash IVF Pty Ltd CAN 11 370 891 [2010] QSC 118 (stored semen
constituted property of the deceased, ownership of which vested in the deceased’s
personal representatives after his death).
Re Baby D (No. 2) [2011] FamCA 176 (reviews the cases where courts have held that
court authorization is required and that parents lack the power to consent to a medical
intervention on their child).
GWW and CMW (1997) FLC 92-748 (non-therapeutic donation by a minor)
Royal Alexandra Hospital v Joseph [2005] NSWSC 422 (an earlier Jehovah’s Witness
blood transfusion case involving a child).
Wallace v Kam [2012] NSWCA 82.
Theodore Bennett, “’Beauty and ‘The Beast’: Analogising Between Cosmetic Surgery
and Female Genital Mutilation” (2012) 14 Flinders Law Journal 49-68.
Tina Cockburn, Bill Madden, “Failure to Warn of a Risk that did not Materailise: A
Normative Causation Issue in Wallace v Kam [2012] NSWCA 82”, Journal of Bioethical
Inquiry, forthcoming (2012).
MAW v Western Sydney Area Health Service [2000] NSWSC 358.
Cassandra Heilbronn, “Authorising the Harvest of the Sperm of a Deceased Partner”,
October 2011, pp 134-135.
Barry Lyons, “Obliging Children” Medical Law Review 2011,
doi:10.1093/medlaw/fwq031
Carolyn Sappideen, “Bolam in Australia – More Bank Than Bite?” (2010) 33 UNSW Law
Journal 386-424.
Re Y (Mental Patient: Bone Donation) [1997] 2 WLR 556.
Shih-Ning Then, Gabrielle Appleby, “Tissue Transplantation from Children – Difficulties
in Navigating State and Federal Systems” (2010)33 UNSW Law Journal 305-336.
NSW Health, Conflict Resolution in End of Life Settings Project – Working Group Report,
20 May 2010: http://www.health.nsw.gov.au/pubs/2010/conflict_resolution.html
Christopher Ryan, “Out on a Limb: The Ethical Management of Body Integrity Identity
Disorder” (2009) 2 Neuroethics 21-33.
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Lindy Willmott, “Advance Directives and the Promotion of Autonomy: A Comparative
Australian Statutory Analysis” (2010) 17 Journal of Law & Medicine 556-581.
Alexander S, Baur L, Magnusson R, Tobin B, “When Does Severe Childhood Obesity
Become a Child Protection Issue?” (2009) 190 Medical Journal of Australia 136-139.
Russell Viner et al., “Childhood Protection and Obesity: Framework for Practice” (2010)
341 British Medical Journal doi:10.1136/bmj.c3074
Hunger Strike: anorexia and the limits of consent: Richard Guilliatt, “The Hungry
Heart”, Good Weekend, 23 March 2002, p 21.
Sheila Bird, John Harris, “Time to Move to Presumed Consent for Organ Donation”
(2010) 340 British Medical Journal c2188 doi:10.1136/bmj.c2188
Ronald M. Epstein, David N. Corones, Timothy E. Quill, “Withholding Information from
Patients – When Less is More” (2010) 362 New England Journal of Medicine 380-1.
Ronald M. Epstein, Ellen Peters, “Beyond Information: Exploring Patients’ Preferences”
(2009) 302 Journal of the American Medical Association 195-197.
D Isaacs, R. Garsia, B. Peat, “HIV in Pregnancy: Interests of the Mother and the Baby”
(2003) 39 Journal of Paediatrics and Child Health 60-66.
Andrew Downie, “Re C (HIV Test): The Limits of Parental Autonomy” (2000) 12 Child
and Family Law Quarterly 197-202.
HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam), at:
http://www.bailii.org/ew/cases/EWHC/Fam/2003/1017.html
A.C. v Director of Child and Family Services, Supreme Court of Canada, heard May 2008
(awaiting judgment).
AFP, “Parents Defend Growth-Stunt Operation”, Sydney Morning Herald 5 January
2007.
“The Ashley Treatment”: Towards a Better Quality of Life for “Pillow Angels””, 3
January 2007, at: http://pillowangel.org/Ashley%20Treatment%20v7.pdf
Simon Cooke, “Use of Sperm After Death in Victoria” (2005) 13(10) Australian Health
Law Bulletin 113 (references relevant cases on post-mortem sperm harvesting,
including AB v A-G for the State of Victoria [2005] VSC 180 (27 May 2005).
Philip Bates, “’Causation’ and ‘Loss of Chance’ in Medical Procedures” (2005) 79
Australian Law Journal 160-166 [commenting on Chester v Afshar [2004] UKHL 41 – a
House of Lord decision adopting the Australian High Court’s majority approach in
Chappel v Hart (1998) 195 CLR 232].
James Lavery, “Chappel v Hart: The High Court’s Lost Chance” (1998) 7 Australian
Health Law Bulletin 25.
Paul Biegler, Cameron Stewart, Julian Savulescu and Loane Skene, “Determining the
Validity of Advance Directives” (2000) 172 Medical Journal of Australia 545.
Di Carlo v Dubois [2004] QCA 150, noted at (2004) 12 JLM 161-163.
Merle P. Spriggs, “Ethics and the Proposed Treatment for a 13-year-old with Atypical
Gender Identity” (2003) 181 Medical Journal of Australia 319-321.
Thomas Addison, “Negligent Failure to Inform: Developments in the Law since Rogers v
Whitaker” (2003) 11 Torts Law Journal 165-195.
Loane Skene, “When Can Doctors Treat Patients Who Cannot or Will Not Consent?”
(1997) 23 Monash University Law Review 77.
Terence Bartholomew & Susan Paxton, “General Practitioners’ Perspectives Regarding
Competence and Confidentiality in an Adolescent with Suspected Anorexia Nervosa:
Legal and Ethical Considerations” (2003) 10 Journal of Law and Medicine 308.
Joe Gottlieb and Susie Linden, “Rosenberg v Percival – Rogers v Whitaker Revisited”
(2001) 9(8) Australian Health Law Bulletin 69.
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In the Matter of Gray [2000] QSC 390 (12 October 2000) (harvesting sperm from
deceased husband)
Re GWW and CMW (1997) FLC 92-748 (non-therapeutic donation by a minor)
Sonia Gover, Susan Brady & Patty Chondros, “Sterilisation of girls and Young Women: Is
it Still Happening?” (2002) 26 Australian and New Zealand Journal of Public Health 273.
Terry Carney, “Regulation of Treatment of Severe Anorexia Nervosa: Assessing the
Options” (2002) 11 Australian Health Law Bulletin 25.
Loane Skene and Richard Smallwood, “Informed Consent: Lessons from Australia”
(2002) 324 British Medical Journal 39.
Patrick Parkinson, “Children’s Rights and Doctors’ Immunities: The Implications of the
High Court’s Decision in Re Marion” (1992) 6 Australian Journal of Family Law 101
Ford, “The Sterilisation of Young Women with an Intellectual Disability: A Comparison
Between the Family Court of Australia and the Guardianship Board of New South
Wales” (1996) 10 Australian Journal of Family Law 236.
Paul Biegler and Cameron Stewart, “Assessing Competence to Refuse Medical
Treatment” (2001) 174 Medical Journal of Australia 522.
C. Stewart, “Qumshieh’s Case, Civil Liability and the Right to Refuse Medical Treatment”
(2000) 8 Journal of Law and Medicine 56.
Helen Reed, “A Pregnant Woman’s Rights Versus a Fetus’s Position: What is the
Australian Position?” (1996) 4 Journal of Law and Medicine 165.
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[Vol 2]
Module 3
PROFESSIONAL LIABILITY
This module deals with the principles determining doctors’ liability, as well as the
liability of a hospital. At the end of this module you should:
o be familiar with the application of principles of negligence to the health care
setting;
o be able to articulate the duty of doctors in relation to the provision of medical
treatment, and information about the risks of treatment;
o be aware of the role of causation issues in the determination of negligence
actions;
o be able to evaluate critically the duties owed by doctors to individuals who are
not patients;
o be familiar with the principles relating to liability of hospitals and understand
the difference between vicarious liability and direct, non-delegable duty.
Reality Check:
o “Cancer Patient has Wrong Side of Bowel Removed at Northern Beaches
Hospital”, ABC News, 24 June 2019.
o “Baby Dies at Bankstown-Lidcombe Hospital after oxygen mix-up in neo-natal
unit” ABC News 26 July 2016.
o Sarah Gerathy, “Baby oxygen mix-up: Bankstown-Lidcombe Hospital engineer
stood down over fatal error” ABC News 2 August 2016.
o Eamonn Duff, “He Destroyed My Life” Sun Herald, 8 June 2014, pp 13-14.
o Amanda Adrian, “Why Some Patients Complain” Australian Doctor 18 May 2001,
p 59. Why do patients sue their doctors or other health care providers?
o In addition to the impact on patients, consider the impact of complaints and
litigation on health care providers: Kate Harding, “Learning from Richard’s
Death” MJA Insight, 14 May 2018.
o Australian Institute of Health and Welfare (AIHW), Australia’s Medical Indemnity
Claims 2012-13 (summary).
Here’s a reality check for you: The final exam is based on material we cover in class:
it tests your learning across the course. You need to attend class routinely and read
the materials or you will miss issues that will be tested in the exam.
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Background:
For a brief summary of general principles about the approach Australian courts take
to imposing a duty of care, see Caltex Refineries (Qld) Pty Ltd v Stavar [2009]
NSWCA 258 [101]-[107]. Note that ‘proximity’ is no longer a unifying control device
that limits ‘reasonable foreseeability’, but one of a number of ‘salient features’ to
be considered. The existence of a duty of care is well recognised by courts (eg
Rogers v Whitaker) although novel issues do arise sometimes: eg BT v Oei (below).
We begin this module with some examples of health care procedures gone wrong.
Adverse events are distressingly common; by themselves they do not indicate
medical negligence.
3.1
Key categories of claim
Under this heading, we’ll be exploring some of the different ways in which health
professionals can breach their duty of care to patients.
Advice negligence:
We previously considered advice negligence claims due to the overlap with heading
2.4 (above).
o Rogers v Whitaker (1992) 175 CLR 479 (see 2.4 above, vol 1)
o Jambrovic v Day [2017] NSWSC 1468.
o Chappel v Hart (1998) 156 ALR 517 (see 2.4 above, vol 1)
o Wallace v Kam [2013] HCA 19 (see 2.4 above, vol 1)
For non-advice negligence claims, you need to be clear on the tests for breach of
duty of care (as well as the other elements of the claim).
Negligence in the execution of a medical procedure:
o Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 (see 2.4
above, vol 1)
Mis-diagnosis:
The O’DShea case also introduces us to some of the head of damages that may be
awarded in a successful claim for medical negligence.
o Brian Donovan, “Fighter for Justice Whose Victory Lives On”, The Australian
(date unknown)
o O’Shea v Sullivan (1994) Aust Torts Reports 81-271.
Failure to treat:
Note the overlap between failure to render urgent medical treatment (and other
forms of liability in negligence) and professional liability under the National Law.
o Lowns & Anor v Woods & Ors (1996) Aust Torts Reports 81-376.
o Health Practitioner Regulation National Law (NSW) No 86a s. 139C.
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Inadequate management of the patient:
There are many ways that doctors might fail to adequately manage their patients;
for example, by failing to contact a patient for follow-up, administering
inappropriate levels of a drug, or failure to refer a patient for specialist review.
The cases chosen below also raise the issue of a doctor’s duty of care to nonpatients, including sexual partners of the doctor’s patient. You should also pay
attention to relevant statutory provisions relating to STIs and their management.
o D. Hirsch, “Doctor’s Duty of Care to a Patient’s Sexual Partners” (1999) 8
Australian Health Law Bulletin 53 (discussing BT v Oei [1999] NSWSC 1082).
o See also BM v AR [2007] VCC 223 (22 March 2007), a case from the Victorian
County Court where a judge awarded damages in negligence (including
aggravated damages) for transmission of genital herpes. The case is a clear
illustration of the duty of care owed between sexual partners to take reasonable
care to prevent the transmission of an STI. BT v Oei, on the other hand, concerns
a doctor’s duty to manage a patient with an STI.
o PD v Harvey [2003] NSWSC 487 (Cripps AJ)
o Harvey & Ors v PD [2004] NSWCA 97 (extracts from Santow JA, Ipp JA).
o Duties of care owed by service companies: C S v Biedrzycka [2011] NSWSC 1213,
and on appeal: Idameneo (No 123) Pty Ltd v Gross [2012] NSWCA 423. [not
extracted in materials]
Loss of chance & quantification of damage:
A “loss of chance” claim is a claim where the patient argues that the doctor’s breach
of duty of care deprived him or her of a possibility of avoiding harm, or of a better
outcome, but the plaintiff cannot prove their claim on the balance of probabilities
(ie according to the civil standard of proof).
You need to be aware of the different – and irreconcilable – approaches taken by
the NSW CA in Rufo, and the High Court in Tabet. Tabet v Gett states the law in
Australia.
o Rufo v Hosking [2004] NSWCA 391
o Tabet v Gett [2010] HCA 12
3.2
Tort Law Reform – Statutory dimensions of medical negligence (duty,
standard, breach, causation, damages):
We begin this topic by systematically working through relevant sections of (in
particular) the Civil Liability Act 2002 (NSW) and noting their impact on medical
negligence claims. The devil is in the detail, so you need to be clear on how
legislation impacts each element of a medical negligence claim, as well as heads of
damages.
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New South Wales initiatives:
o Health Care Liability Act 2001 (NSW) ss 19, 21.
o Civil Liability Act 2002 (NSW) ss 5A-5E, 5O-5Q, 12-18, 21-27, 29-33, 56-58, 70-71.
o Civil Liability (Non-economic Loss) Amendment Order 2019 (NSW).
o Legal Profession Uniform Law Application Act 2014 (NSW) Schedule 2
(provisions extracted) [introduced by the Civil Liability Act and formerly
contained in the now-repealed Legal Profession Act 2004 (NSW) ss 345-348].
o Dobler v Halverson [2007] NSWCA 335. What does this case stand for?
o Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 (1 March 2018) [not
extracted in the materials]. An important case on the operation of s 5O;
relevant also to when s 5B applies.
o Rooty Hill Medical Centre v Gunther [2002] NSWCA 60. What principle does this
case illustrate?
Duty to disclose:
While unrelated to medical negligence, doctors owe positive reporting obligations
under a variety of statutes. These include notifiable conduct under the National
Law, and mandatory reporting obligations where a child is at risk of harm. We
consider the scope of mandatory reporting under the Children and Young Persons
Care and Protection Act 1998 (NSW) s 27, and also the issue of public reporting of
surgical and other treatment outcomes.
Do doctors owe a duty to disclose if their own illness, addiction or other poor health
poses a risk to patients? What about if their level of inexperience poses a risk to
the patient?
o Health Practitioner Regulation National Law (NSW) No 86a ss 140-141; 152152K (impairment)
o Lucy Shannon, “Fears Mandatory Reporting of Doctors with Mental Health
Issues Leading to Suicides” ABC News, 4 December 2019 (handout in Module 1)
3.3 Liability of Hospitals and Organisations
Liability for tortuous conduct by employees and others:
We begin this topic by distinguishing between (1) a doctor’s duty of care to a
patient, (2) a hospital (or institution’s) vicarious liability for the wrongs of its health
care employee, and (3) the duty of care owed directly by a hospital or health care
institution to a patient.
Note the obvious point that vicarious liability is a doctrine that only applies to the
wrongs of employees (not independent contractors).
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The cases below explore all these issues.
o Roe v Minister for Health [1954] 2 QB 66 (briefly noted). What do I mean when I
refer to the “1954 spectacles principle”?
o Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542.
o Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.
o Rooty Hill Medical Centre v Gunther [2002] NSWCA 60 (see 3.2, above).
o Employees Liability Act 1991 (NSW)
What tests or considerations were considered relevant in Albrighton and Ellis in
determining whether a medical functionary is an employee (for the purposes of
vicarious liability)?
In what circumstances will a hospital not owe a direct duty of care to a patient, in
respect of a civil wrong committed by a doctor operating at the hospital?
o Sherry v Australasian Conference Association (t/a Sydney Adventist Hospital)
[2006] NSWSC 75 (23 February 2006). This case provides a further example of
how a duty of care owed by a hospital to a patient can be breached. How was it
breached in this case?
o Coffey v Murrumbidgee Local Health District [2019] NSWSC 1265 (not extracted;
briefly noted).
How does the standard of the non-delegable duty of care owed by a hospital relate
to the CLA s 5O?
We complete this topic by working through a series of questions that relate to
visiting medical officers (VMOs, or accredited medical officers), insurance
arrangements, indemnity and apportionment of liability.
The topic ends with some revision questions covering material covered earlier in
the unit.
Further Reading:
o Coffee v Murrumbidgee Local Health District [2019] NSWSC 1265.
o David Worswick, “Peer professional opinion about competent obstetric practice: Coffee
v Murrumbidgee Local Health District” Australian Health Law Bulletin, April 2020, pp 915.
o Bill Madden, “Patient discharge and COVID-19 resource allocation: UK decision”
Australian Health Law Bulletin, July 2020, pp 42-44.
o Imme Kaschner, Alon Januszewicz, “Leonard v Kulatilake – a Medical Practitioner’s Duty
to Warn About Uncertainty” Australian Health Law Bulletin, June 2019, p 86.
o Elysee v Hassan [2018] NSWDC 137 (failure to refer patient for expert management of
his diabetes).
o Bill Madden, “the Gould Appeal: Irrational Yet Widely Accepted Practice?” Australian
Health Law Bulletin, August 2018, pp 120-123.
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o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
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o
o
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o
o
Rachel Canawy et al., “Public Reporting of Clinician-level Data” Medical Journal of
Australia 2017; 207(6): 18 September 2017.
Rebekah McWhirter, “Performance Data and Informed Consent: A Duty to Disclose?”
Medical Journal of Australia 2017; 207(3): 100-101e.
Charles Vincent, Magi Young, Angela Phillips, “Why do People Sue Doctors? A Study of
Patients and Relatives Taking Action” Lancet 1994; 343: 1609-1613.
James Edelman, “Loss of Chance” (2013) 21 Torts Law Journal 1-15.
Stephen Westaby, “Publishing Individual Surgeons’ Death Rates Prompts Risk Averse
Behaviour” British Medical Journal 2014; 349:g5026; see also Bolsin and Colson,
“Publishing Performance Data is an Ethical Obligation in All Specialties” British Medical
Journal 2014; 349:g6030.
Marie Bismark et al. “Mandatory Reports of Concerns about the Health, Performance
and Conduct of Health Practitioners” (2014) 201 Medical Journal of Australia 399-403.
Almario v Varipatis (No 2) [2012] NSWSC 1578, overturned on appeal [2013] NSWCA 76
(inter alia, whether a doctor breached their duty of care by failing to refer a grossly
obese patient for assessment for bariatric surgery).
Idameneo (No 123) Pty Ltd v Gross [2012] NSWCA 423, on appeal from C S v Biedrzycka
[2011] NSWSC 1213 (confirming that service companies providing administrative
services to medical practices also owe a duty of care to the sexual partners of a
practice’s patients; also discussing liability under contract, indemnity and
apportionment between the service company and doctors).
O’Gorman v Sydney South West Area Health Service [2008] NSWSC 1127.
Kite v Malycha [1998] SASC 6702 (liability in negligence for failing to follow up a
cytology report and act on it; the patient specimen was showed carcinoma).
Greg Walsh, Anna Walsh, “Tabet v Gett: The end of Loss of Chance Actions in
Australia?” (2010) 18 Journal of Law and Medicine 50-57.
Ian Freckelton, “Disciplinary Notations on the Medical Register of Australia” (2012)
196(10) Medical Journal of Australia 612-613.
Bill Madden, Tina Cockburn, “Liability of Hospitals and Health Care Facilities for Sexual
Assaults” (2011) 8 Journal of Bioethical Inquiry 113-119.
Australian Institute of Health and Welfare, Australia’s Public Sector Medical Indemnity
Claims 2009-10, AIHW: September 2012: http://www.aihw.gov.au/publicationdetail/?id=10737421854 .
Andrew Gogos, Richard Clark, Marie Bismark et. al., “When Informed Consent Goes
Poorly: A Descriptive Study of Medical Negligence Claims and Patient Complaints”
(2011) 195 Medical Journal of Australia 340-344.
Kerrie Chambers, “Medical Indemnity – Is there a Crisis?” Is there a Solution?” (2002)
11 Australian Health Law Bulletin 13
Peter Cashman, “Tort Reform and the Medical Indemnity ‘Crisis’” (2002) 25 UNSW Law
Journal 888
Charles Vincent, Magi Young, Angela Phillips, “Why Do People Sue Doctors? A Study of
Patients and Relatives Taking Legal Action” (1994) 343 Lancet 1609-1613.
Martin Gallagher, Harlan Krumholz, “Public Reporting of Hospital Outcomes: A
Challenging Road Ahead” (2011) 194 Medical Journal of Australia 658-660.
Bernadette Richards, Bill Madden, Tina Cockburn, “Liability of Hospitals and Health Care
Facilities for Sexual Assaults” (2011) 8 Journal of Bioethical Inquiry 114-119.
Australian Commission on Safety and Quality in Health Care: at:
http://www.safetyandquality.gov.au/
Carolyn Sappideen, “Bolam in Australia: More Bark than Bite?” (2010) 33 UNSW Law
Journal 386-424.
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o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
o
Ian Freckelton, “Regulation of Health Practitioners: National Reform in Australia” (2010)
18 Journal of Law and Medicine 207-220.
Australian Institute of Health & Welfare (AIHW), Public and Private Sector Medical
Indemnity Claims in Australia 2007-2008, Canberra: AIHW, 2011.
Louise Nash et al., “Perceived Practice Change in Australian Doctors as a Result of
Medicolegal Concerns” (2010) 193 Medical Journal of Australia 579-583.
Sandeep S. Mangalmurti, Lindsey Murtagh, Michelle Mello, “Medical Malpractice
Liability in the Age of Electronic Medical Records” (2010) 363 New England Journal of
Medicine 2060-2067.
Tara Lagu, Peter Lindenauer, “Putting the Public Back in Public Reporting of Health Care
Quality” (2010) 304 JAMA 1711-1712.
David Studdert, Mark Richardson, “Legal Aspects of Open Disclosure – A Review of
Australian Law” (2010) 193 Medical Journal of Australia 273-276.
HCCC v Fitzgerald [2010] NSW Nurses & Midwives Tribunal 24 (24 August 2010)
(example of professional disciplinary proceedings against, in this case, a nurse).
Danielle Ofri, “Quality Measures and the Individual Physician” (2010) 363 New England
Journal of Medicine 606-607.
Anne Sullivan, “Loss of a Chance in Medical Negligence Cases: Legal Considerations”
(2009) Australian Health Law Bulletin March 2007, p 77.
Shirley Alexander et al., “When Does Severe childhood Obesity Become a Child
Protection Issue?” (2009) 190 Medical Journal of Australia 136-139.
Clare A. Skinner et al, “Reforming New South Wales Public Hospitals: An Assessment of
the Garling Inquiry” (2009) 190 Medical Journal of Australia.
Neil Bacon, “Head to Head: Will Doctor Rating Sites Improve Standards of Care? Yes”
(2009) 338 BMJ b1030.
Margaret McCartney, “Will Doctor Rating Sites Improve the Quality of Care? No” (2009)
338 BMJ b1033.
Peter C. Arnold, “Mandatory Reporting of Professional Incompetence” (2008) 189
Medical Journal of Australia 132-133.
Thomas H. Gallagher, David Studdert, Wendy Levinson, “Disclosing Harmful Medical
Errors to Patients” (2007) 356 New England Journal of Medicine 2713-2719.
Matthew Ellis, “Patient Follow-up: The Scope of the Duty, the Impact of Tort Law
Reform and Practical Suggestions to Comply with Legal Requirements” (2007) 15
Journal of Law & Medicine 408-422.
James Tibballs, “Loss of Chance: A New Development in Medical Negligence Law”
(2007) 187 Medical Journal of Australia 233-235.
AIHW, Medical Indemnity National Data Collection Public Sector, 2006-07, at:
http://www.aihw.gov.au/publications/index.cfm/title/10618
E W Wright, National Trends in Personal Injury Litigation: Before and After “Ipp”, Report
Commissioned for the Law Council of Australia, 26 May 2006, at:
http://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/a-z-docs/wright_report.pdf
Fiona Tito Wheatland, “Medical Indemnity Reform in Australia: ‘First Do No Harm’”
Journal of Law, Medicine & Ethics, Fall 2005, p 429.
Law Reform Commission of NSW, Issues Paper 24 (2004): Minors’ Consent to Medical
Treatment, available at: http://www.lawlink.nsw.gov.au/lrc.nsf/pages/ip24chp02
Bill Madden, “Loss of a Chance and Onus of Proof Revisited – Rufo v Hosking” (2004)
13(4) Australian Health Law Bulletin 41-48.
Loane Skene & Harold Luntz, “Effects of Tort Law Reform on Medical Liability” (2005)
79 ALJ 345.
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o
o
o
o
o
o
o
o
o
o
o
o
o
ABC Radio National, The Law Report, “Medical Mistakes” 11 May 2004, transcript
available at: http://www.abc.net.au/radionational/programs/lawreport/medicalmistakes/3423740.
K. Offit, E. Groeger, S Turner et al., “The ‘Duty to Warn’ a Patient’s Family Members
About Hereditary Disease” (2004) 292 Journal of the American Medical Association
1469-1473.
Harold Luntz, “Damages in Medical Litigation in New South Wales” (2005) 12 Journal of
Law and Medicine 280-293.
Medical Indemnity Policy Review Panel, Affordable, Secure and Fair: Report to the
Prime Minister, 10 December 2003 (Panel chaired by Cth Health Minister Tony Abbott).
http://www.asa.org.au/uploadedfiles/mi_review_panel_report.pdf
Review of the Law of Negligence, (the “Ipp Report”), August 2002:
http://www.amatas.com.au/assets/ipp_report.pdf
Background Briefing: 30 November 2003 – “What insurance Crisis”:
http://www.abc.net.au/radionational/programs/backgroundbriefing/what-insurancecrisis/3404214
Connolly, “Perspectives on Finch v Rogers” (2004) 12(8) Australian Health Law Bulletin
93.
Simon Uthmeyer and Anita George, “ACCC 5th Report to Australian Senate on AntiCompetitive Practices by Health Funds and Providers in Relation to Private Health
Insurance” (2004) 12(6) Australian Health Law Bulletin 69.
A Fels, “The Trade Practices Act and the Health Sector” (1998) 6 Australian Health Law
Bulletin 57.
Paul Gerber, “The O’Shea Trial: Lost Chances of Successful Surgery” (1995) 2 Journal of
Law and Medicine 327.
T Boston, “A Hospital’s Non-Delegable Duty of Care” (2003) 10 Journal of Law and
Medicine 364.
Wayne Cahill and Alison Choy Flannigan, “Perspectives on Chambers v Macquarie
Pathology Services” (2001) 9(10) Australian Health Law Bulletin 88.
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Module 4
REPRODUCTION
This module examines the legal issues that arise in the area of reproduction. By the
end of this module you should:
o be familiar with the terms “wrongful birth” and “wrongful life” and understand
the difference between them;
o be familiar with the requirements for proving a wrongful birth claim;
o be familiar with the heads of damages that a successful plaintiff can claim in a
wrongful birth case;
o be able to articulate the major policy arguments that arise in wrongful life and
wrongful birth cases;
o be familiar with the principles that apply in cases of alleged prenatal injury;
o be familiar with the law on abortion in NSW;
o be familiar with the debates over fetal rights.
Reality Check: the moral dimension
o Lisa Harris, “Navigating Loss of Abortion Services – A Large Academic Medical
Center Prepares for the Overturn of Roe v Wade” New England Journal of
Medicine, 11 May 2022.
https://www.nejm.org/doi/pdf/10.1056/NEJMp2206246?articleTools=true
o Kate Legge, “Abortion Case a Kafakesque Nightmare”, Weekend Australian 2627 March 2005, pp 1 & 6.
o Jennifer Graham, “Babies that could fit in a coffee cup are increasingly
surviving. Do ‘micropreemies’ change the abortion debate?” Deseret News, 16
May 2019: https://www.deseretnews.com/article/900070959/micropreemiesbabies-premature-preemie-health-pregnancy-birth.html
o Moral premises and the unborn child: D. Isaacs, “What is the Value of a Human
Baby?” (2002) 38 Journal of Paediatrics & Child Health 608.
o Edward Helmore, “10-year-old Rape Victim Forced to Travel from Ohio to
Indiana for Abortion” Guardian 4 July 2022.
Module 4 covers legal regulation of abortion, fetal rights (or rather, their absence),
as well as tort claims for prenatal injury, wrongful birth, and wrongful life. We’ll
also cover some elements of reproductive technology.
We begin the module with some examples to illustrate the morally contested
nature of law in this area. Some of these examples relate to abortion, and legal
efforts to undermine a woman’s right to an abortion in the US (including legally
coerced ultrasounds, abortion reversal and admitting privileges for abortions).
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We also consider who is getting abortions in Australia.
4.1
Wrongful Birth
o CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47.
We begin this topic by considering CES v Superclinics. CES is an unsatisfactory case
in almost every respect, with limited value as a precedent, although it provides a
good factual example of a wrongful conception claim, an illustration of the morally
contested nature of the broader category of wrongful birth claims, whether the
requirement for damage or harm is satisfied in such a case and if so, what exactly
the damage is.
The defendant’s defence in CES raised the issue of the lawfulness of the
hypothetical abortion the plaintiff was precluded from having, due to the
defendant’s negligence. At the time CES was decided, stricter abortion laws applied
in NSW.
o Cattanach v Melchior [2003] HCA 38 (16 July 2003). The judgment of Gleeson CJ
(dissenting) is included in your materials. The whole judgment is available on
the Canvas site under module 4.
o Civil Liability Amendment Act 2003 (NSW) ss 70-71. [see module 3]
Cattanach is a leading High Court case on wrongful birth in Australia. However, you
should note that such claims are now impacted by relevant legislation, including, in
NSW, CLA ss 70-71. We will consider a variety of issues raised by the majority and
minority judgments, particularly as regards the damage element, and principles for
the calculation of damages.
o Briefly noted: Waller v James [2013] NSWSC 497, Neville v Lam (No 3) [2014]
NSWSC 607 and Lee (a pseudonym) v Dhupar [2020] NSWDC 717 [discussed but
not extracted]
These cases raise important issues as regards wrongful birth claims brought in NSW,
including available heads of damages.
o Actions for loss of genetic affinity: ACB v Thomson Medical Pte Ltd [2017] SGCA
20 (Court of Appeal of Singapore): http://www.singaporelaw.sg/sglaw/laws-ofsingapore/case-law/free-law/court-of-appeal-judgments/22753-acb-v-thomsonmedical-pte-ltd-and-others
This case raises the prospect of a claim for loss of genetic affinity with one’s child, as
a result of medical negligence. Should a plaintiff be able to claim damages because
her child – born following in virto fertilisation – has the wrong skin colour? If so,
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what does this say about other familial relationships where genetic affinity is
missing?
4.2
Wrongful Life
We begin this topic by distinguishing wrongful life from pre-natal injury claims.
o McKay v Essex Area Health Authority [1982] 2 All ER 771 (CA) [not extracted in
materials, referred to in Harriton]
Status of wrongful life claims in Australia: please familiarise yourselves with the key
reasoning adopted by the High Court in Harriton.
o Harriton v Stephens [2006] HCA 15 (9 May 2006). [See also Waller v James
[2006] HCA 16]. What is the difference between a Wrongful Birth action, and a
Wrongful Life action?
Is the decision in Toombes v Mitchell [2020] HWHC 3506 likely to affect Australia’s
position on wrongful life claims?
4.3
Prenatal Injury
o Watt v Rama [1972] VR 353 [not extracted in materials, referred to in X and Y]; a
more recent example is Zraika v Walsh (No 2) [2014] NSWSC 655.
o X and Y (By her Tutor X) v Pal (1991) 23 NSWLR 26. If a foetus has no legal
personality until live birth, how is it that a duty of care can be owed to the
unborn and, as in this case, in favour of persons not yet conceived?
o Lynch v Lynch (By her Tutor Lynch) (1991) 25 NSWLR 411. Is intra-familial tort
immunity always a good idea?
We will discuss “Zoe’s law”, and the arguments for and against greater legal
recognition of the foetus; for example, legislation recognising that a foetus may be
the subject of a crime. Various versions of Zoe’s law have been introduced into the
NSW Parliament (Legislative Assembly and Legislative Council) but none has yet
been successful.
4.4
Abortion
We begin this topic by considering abortion law reform in NSW (2019) and the
criminal law of abortion that was applied prior to that.
o Abortion Law Reform Act 2019 (NSW)
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o
o
o
o
o
o
Crimes Act 1900 (NSW) s 82
Crimes Act provisions on abortion (now repealed): ss 82-84
R v Wald [1971] 3 DCR (NSW) 25.
CES v Superclinics (Aust) Pty Ltd (1995) 38 NSWLR 47 (see 4.1 above)
R v Sood [2006] NSWSC 1141. The judgment constitutes remarks on sentence
for conviction of two offences against the Crimes Act 1900 (NSW) s 83 (NB S 83
was repealed consequential to passage of the Abortion Law Reform Act 2019)
Michaela Whitbourn, “Sydney Woman Prosecuted for Taking Abortion Drug”
Sydney Morning Herald, 14 August 2017.
Other States have seen abortion law reform in recent years: we compare NSW law
with selected features of the law in Victoria and South Australia.
o Abortion Law Reform Act 2008 (Vic) [selected sections].
o Crimes Act 1958 (Vic) s 65.
o Termination of Pregnancy Act 2021 (SA) [selected sections]
We consider medical abortions and the recent history of RU486 (a drug comprising
mifepristone and misoprostol).
o Rachel Clun, “Tele-abortion Service to ‘fill gap’ in Access” Sydney Morning
Herald, 26-27 October 2019, p 2.
Do late-term abortions raise additional legal or moral issues not raised by abortions
earlier in pregnancy? If premature babies are surviving at 23, 24,25 weeks, how
comfortable are you with terminating the life of the foetus at that stage of
development? We will also consider stages to delay: the factors that may
contribute to late-term abortions.
Australian States have passed safe access zone legislation: we look at the law in
NSW and Victoria.
o Public health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic)
[selected sections]
o Safe access legislation in NSW: Public Health Act 2010 (NSW) Part 6A:
http://www.austlii.edu.au/cgibin/viewdb/au/legis/nsw/consol_act/pha2010126/
Finally, we look at Australians’ views about the lawfulness of abortion, and
whether/when doctors should face professional sanctions for performing abortions.
4.5
Fetal Rights
o St George’s Healthcare NHS Trust v S; R v Collins & Ors, ex parte S [1998] 3 All ER
673 (see 4.3 above)
4.6
Miscellaneous
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o In the Marriage of F and F (1989) FLC 92-031
As with most cases that start with “In the marriage of…”, we’re talking about a fairly
unsuccessful marriage here. Can a husband obtain an injunction to prevent his wife
from having an abortion?
Further Reading:
• Dobbs v Jackson Women’s Health Organization No. 19-1392, 597 U.S. ___ (24 June
2022).
• Nina Sun “Overturning Roe v Wade: Reproducing Injustice” BMJ 2022; o1588.
• Whitney Arey et al., “A Preview of the Dangerous Future of Abortion Bans – Texas
Senate Bill 8” New England Journal of Medicine 22 June 2022, DOI:
10.1056/NEJMp2207423
• Terry McGovern, “Overturning Roe v Wade would be an Unprecedented Attack on the
Bodily Autonomy of Women, Girls and Pregnant People” BMJ 2022; 377:o1019.
• Toombes v Mitchell [2020] HWHC 3506
• Natasha Burn, Andrew Lu, “Wrongful Life Cause of Action or Not? Toombes v Mitchell”
Australian health Law Bulletin, May 2021, pp 38-40.
• Susan Jaffe, “US Supreme Court Expected to Weaken Abortion Rights” Lancet 2021;
398:2137-2138.
• Louise Keogh et al., “Estimating the abortion rate in Australia from National Hospital
Morbidity and Pharmaceutical Benefits Scheme data” Medical Journal of Australia,
published online 30 August 2021; doi: 10.5694/mja2.51217.
• Anna Walsh, Tiana Legge, “Abortion Decriminalisation in New South Wales: An Analysis
of the Abortion Law Reform Act 2019 (NSW)” Journal of Law and Medicine 2019;
27:325-337.
• Ronli Sirris, Adiva Sifris, “Parentage, Surrogacy and the Perplexing State of Australian
Law: A Missed Opportunity” Journal of Law and Medicine 2019; 27:369-386.
• Nouri v Australian Capital Territory [2020] ACTCA 1 (wrongful birth claim from the ACT)
• Tracey Carver, Tina Cockburn, Bill Madden, “Wrongful Birth Children and Assessing
Damages for Costs of Care: Australian and British Jurisprudence Compared” Monash
University Law Journal 2018; 44(1):198-233.
• PP v DD [2017] ONCA 180, briefly discussed in Chris Chosich, Alon Januszewicz, “Foreign
Court of Appeal Strikes Out Claim for “Involuntary Parenthood” – PP v DD” Australian
Health Law Bulletin, July 2017, pp 94-98.
• Robert Barnes, “Supreme Court strikes down restrictive Louisiana abortion law that
would have closed clinics” Washington Post 30 June 2020:
https://www.washingtonpost.com/politics/courts_law/supreme-court-louisianaabortion-law-john-roberts/2020/06/29/6f42067e-ba00-11ea-8cf59c1b8d7f84c6_story.html
• Alison Branley, Sophie Scott, “The rate of abortion in Australia is lower than you think”,
ABC News, 13 December 2017: https://www.abc.net.au/news/2017-12-13/the-rate-ofabortion-in-australia-is-lower-than-you-think/9250122
• Bruce Blackshaw, Daniel Rodger, “Questionable benefits and unavoidable personal
beliefs: defending conscientious objection for abortion” Journal of Medical Ethics, 2020;
46:178-182.
• Louis Baigent, Sarah Vallance, “Wrongful birth claims: what to expect when you’re not
expecting” Precedent 2019, vol. 151, pp 14-18.
• Clubb v Edwards; Preston v Avery [2019] HCA 11.
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Felicity Iredale, Talisa Juracich, “Do safe access zones protect health practitioners and
patients at the cost of constitutional freedoms? – Clubb v Edwards; Preston v Avery”
Australian Health Law Bulletin, September 2019, p 126.
Louise Anne Keogh et al., “conscientious objection to abortion, the law and its
implementation in Victoria, Australia: perspectives of abortion service providers” BMC
Medical Ethics 2019; 20:11.
Jordan English, Mohammud Jaamae Hafeez-Baig, “Recovery of Upkeep Costs, Claims for
Loss of Autonomy and Loss of Genetic Affinity: Fertile Ground for Development?”
Melbourne University Law Review 2018; 41(3):1360-1382.
Caroline de Costa et al., “Medical Abortion: It’s Time to Life Restrictions” Medical
Journal of Australia 2019; 210(6):248-249.
Shireen Morris, Adrienne Stone, “Abortion Protests and the Limits of Freedom of
Political Communication: Clubb v Edwards; Preston v Avery” Sydney Law Review 2018;
40:395-409.
Chris Chosich, Alon Januszewicz, “Foreign Court of Appeal Strikes Out Claim for
“Involuntary Parenthood” – PP v DD” Australian Health Law bulletin, July 2017, pp 9498.
Termination of Pregnancy Act 2018 (Qld).
https://www.legislation.qld.gov.au/view/html/inforce/current/act-2018-023
Angela Taft et al., “Unintended and Unwanted Pregnancy in Australia: A cross-sectional,
national random telephone survey of prevalence and outcomes”. Medical Journal of
Australia 2018; doi: 10.5694/mja17.01094, 8 October 2018.
Daniel Grossman, “Abortion ‘Reversal’: Legislating Without Evidence” New England
Journal of Medicine, 2018; 379:1491-1493.
NSW Health, “Pregnancy – Framework for Terminations in New South Wales Public
Health Organisations”, PD2014_22, 2 July 2014.
https://www1.health.nsw.gov.au/pds/ActivePDSDocuments/PD2014_022.pdf
Hannah Robert, “The bereavement gap: Grief, human dignity and legal personhood in
the debate over Zoe’s Law” Journal of Law and Medicine 2014; 22: 319-334.
Christine Forster, Vedna Jivan, “Abortion Law in New South Wales: Shifting from
Criminalisation to the Recognition of the Reproductive Rights of Women and Girls”
(2017) 24 Journal of Law and Medicine 850.
Richard Hurley, “End Criminal Sanctions for Abortion”, BMJ 2017; 359:j5409.
ABC v Thomson Medical Pty Ltd, Singapore Court of Appeal: [2017] SGCA 20 (tort action
for loss of genetic affinity): http://www.singaporelaw.sg/sglaw/laws-of-singapore/caselaw/free-law/court-of-appeal-judgments/22753-acb-v-thomson-medical-pte-ltd-andothers
FM Doran, J Hornibrook, “Barriers around access to abortion experienced by rural
women in New South Wales, Australia” Rural and Remote Health 16:3538 (2016);
online.
Anne O’Rourke et. al., “Medical Abortion in Australia: What are the Clinical and Legal
Risks? Is Medical Abortion Over-Regulated?” Journal of Law and Medicine 2016; 24:
221-238.
Central Queensland Hospital and Health Services v Q [2016] QSC 89 (26 April 2016)
http://archive.sclqld.org.au/qjudgment/2016/QSC16-089.pdf (another application to
the Supreme Court requesting permission to terminate the pregnancy of a 12 year old).
Healther Douglas, Caroline de Costa, “Time to repeal outdated abortion laws in NSW
and Qld” Medical Journal of Australia 2016; 205(8): 353-354.
Queensland Parliament, Health, Communities, Disability Services and Domestic and
Family Violence Prevention Committee, Abortion Law Reform (Women’s Right to
Choose) Amendment Bill 2016 and Inquiry into Laws Governing Termination of
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Pregnancy in Queensland: https://www.parliament.qld.gov.au/work-ofcommittees/committees/HCDSDFVPC/inquiries/current-inquiries/AbortionLR-WRCAB2016
Bridie Jabour, “Abortion Pill RU486 to be Available to Australian Women Over the
Phone” The Guardian, 28 September 2015.
Fertility Control Clinic v Melbourne City Council [2015] VSC 424 (26 August 2015) (a precursor to Victoria’s legislation creating “safe access zones” for persons accessing
abortion services).
Caroline de Costa, Heather Douglas, “Abortion Law in Australia: it’s Time for National
Consistency and Decriminalisation” Medical Journal of Australia 2015; 203(9):349-350.
Caroline de Costa et al. “Abortion Law Across Australia – A Review of Nine Jurisdictions”
Australian and New Zealand Journal of Obstetrics & Gynaecology 2015; 55(2): 105-111.
Ronli Sifris, “Tasmania’s Reproductive Health (Access to Terminations) Act 2013: An
Analysis of Conscientious Objection to Abortion and the ‘Obligation to Refer’ Journal of
Law and Medicine 2015; 22:900-914.
Kirsten Black et al. “Women’s Access to Abortion After 20 Weeks’ Gestation for Fetal
Chromosomal Abnormalities: Views and Experiences of Doctors in New South Wales
and Queensland” Australian and New Zealand Journal of Obstetrics & Gynaecology
2015; 55(2): 144-148.
Marie McInerney, “A Call for Woman MPs to Come Together, Across Party Lines, on
Abortion Reform in NSW and Qld” Crikey, 22 May 2015:
http://blogs.crikey.com.au/croakey/2015/05/22/a-call-for-women-mps-to-cometogether-across-party-lines-on-abortion-reform-in-nswqld/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CrikeyB
logs%2Fcroakey+%28Croakey%29
Rosamund Scott, “Reconsidering ‘Wrongful Life’ in England After thirty Years:
Legislative Mistakes and Unjustifiable Anomalies” Cambridge Law Journal 2013; 72(1):
115-154.
Neville v Lame (No 3) [2014] NSWSC 607.
Mike Davis, “Conscientious objection to abortion – an ethical and professional
balancing act” Australian Health Law bulletin, March 2014, pp 36-39.
Tina Cockburn, Bill Madden, “Wrongful birth: assessment of damages in 2013”
Australian Health Law Bulletin, July 2013, pp 348-351.
Marie McInerney, “Why New South Wales Abortion Law Should be Decriminalised”,
Crikey, 27 June 2014, http://blogs.crikey.com.au/croakey/2014/06/27/why-new-southwales-abortion-law-should-bedecriminalised/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%
3A+CrikeyBlogs%2Fcroakey+%28Croakey%29 .
Anne O’Rouke et al, “Abortion and Conscientious Objection: the New Battleground”
(2012) 38 Monash University Law Review 87.
Jade Winterton, “Outside of Marriage, the Family Court has No Jurisdiction to Prevent
Abortions” Australian Health Law Bulletin, June 2012, pp 64-65.
Julie Cantor, “Court-ordered Care: A Complication of Pregnancy to Avoid” (2012) 366
New England Journal of Medicine 2237.
Patrick Ferdinands, “How the Criminal Law in Australia has Failed to Promote the Right
to Life for Unborn Children: A Need for Uniform Criminal Laws on Abortion Across
Australia” (2012) 17 Deakin Law Review 43.
Lachlan J. de Crespigny & Julian Savulescu, “Pregnant Women with Fetal Abnormalities:
the Forgotten People in the Abortion Debate” (2008) 188 Medical Journal of Australia
100-103.
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Paul Mutuanyingi Murıithi, “Does the Rejection of Wrongful Life Claims Rely on a
Conceptual Error?” (2011) JME Online First, published on February 8, 2011 as
10.1136/jme.2010.042051
Lachlan J de Crespigny et al., “Australian Attitudes to Early and Late Abortion” (2010)
193 Medical Journal of Australia 9-12.
Kerry Petersen, “Early Medical Abortion: Legal and Medical Developments in Australia”
(2010) 193 Medical Journal of Australia 26-29.
Why do women seek abortion? Heather Rowe et al, “Considering Abortion: A 12
Month Audit of Records of Women Contacting a Pregnancy Advisory Service” (2009)
190 Medical Journal of Australia 69-72.
Janice Tanne, “Obama Plans to Repeal Bush’s ‘Conscience Clause’ Ruling” (2009) 338
British Medical Journal b1126.
Roger Ingham, Ellie Lee, Steve Joanne Clements, Nicole Stone, “Reasons for Second
Trimester Abortions in England and Wales” (2008) 16(31 Supplement) Reproductive
Health Matters 18-29.
Paul Gerber, “Late-term Abortion: What Can be Learned from Royal Woman’s Hospital v
Medical Practitioners Board of Victoria?” (2007) 186 Medical Journal of Australia 359362.
A Chan & L Sage, “Estimating Australia’s Abortion Rates 1985-2003” (2005) 182 Medical
Journal of Australia 447.
Stephen Todd, “Wrongful Conception, Wrongful Birth and Wrongful Life” (2005) 27
Sydney Law Review 525-542.
R. Elizabeth Dean and S. Allanson, “Abortion in Australia: Access Versus Protest” (2004)
11 Journal of Law and Medicine 510 (this article discusses “bubble legislation” that
prevents anti-abortion protesters harassing women and picketing abortion-providing
clinics).
D. Mendelson, “Abortion and the Criminal Law” (2004) 11 Journal of Law and Medicine
409.
Lachlan J. de Crespigny & Julian Savulescu, “Abortion: Time to Clarify Australia’s
Confusing Laws” (2004) 181 Medical Journal of Australia 201-203.
P Dimopoulos & M Bagaric, “Why Wrongful Birth Actions are Right” (2003) 11 Journal of
Law and Medicine 230.
Bowditch v McEwan [2002] QCA 172 (17 May 2002)
Dobson v Dobson (1999) 174 DLR (4th) 1.
M. Regos, “Damages for Unwanted Pregnancy: New Developments” (1999) 8 Australian
Health Law Bulletin 65
Mark Rankin, “Recent Developments in Australian Abortion Law” Tasmania and the
Australian Capital Territory” (2003) 29 Monash University Law Review 316.
In the Marriage of F and F (1989) FLC 92-031; (1989) 13 Fam LR 189.
Helen Reed, “A Pregnant Woman’s Rights Versus a Fetus’s Rights: What is the Australian
Position?” (1996) 4 Journal of Law and Medicine 165.
Jenny Morgan, “Foetal Imaginings: Searching for a Vocabulary in the Law and Politics of
Reproduction” (2000) 12 Canadian Journal of Woman and the Law 371.
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[Vol 3]
Module 5
WITHDRAWAL OF TREATMENT, END OF LIFE
DECISION-MAKING, AND ASSISTED DYING
This module considers the legal definition of death, the law on suicide and assisted
suicide, and - more specifically within the medical context, the lawfulness of
withdrawing life-preserving medical treatment. Statutory mechanisms for
withdrawing treatment (despite - in some circumstances, supervening
incompetence) are considered, as well as the “euthanasia debate.” By the end of
this module you should:
o be familiar with the statutory definition of death in NSW;
o be familiar with the legal and ethical issues that arise in relation to palliative
care, including pain and symptom relief, and the withdrawal of (life
sustaining) treatment;
o be familiar with the debate over euthanasia laws in Australia.
Reality Check:
o Archbishop Anthony Fisher, “No Matter How You Package it, State-Sanctioned
Killing is Not About Love” Weekend Australian, 22-23 June 2019.
o Melissa Cunningham, “More than 120 Terminally Ill Victorians End their Lives
under Landmark Laws” The Age, 1 September 2020:
https://www.theage.com.au/national/victoria/euthanasia-laws-used-by-124terminally-ill-victorians-to-end-their-lives-20200901-p55rav.html
o First lawful assisted death in Australia since 1996: ABC News, “Bendigo Woman
Kerry Robertson Becomes First Victorian to Use Voluntary Assisted Dying Act”
ABC News, 5 August 2019.
o Margaretta Pos, “A Fine Death” Weekend Australian Magazine, 2-3 December
2017. Now that assisted dying has become (conditionally) lawful in the state
of Victoria, death will become a scheduled event. How will families behave
during this time? Your emotional reaction to this first-hand account may
reveal your true thoughts and feelings about euthanasia.
o “Dutch Court Approves Euthanasia in Cases of Advanced Dementia” The
Guardian, 22 April 2020. Euthanasia advocates usually base their case on
personal autonomy: does Dutch law give support to conservatives, who fear a
slippery slope?
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We begin this module with three, inter-related legal case studies.
The first case study follows the career and advocacy of Victorian urologist Dr
Rodney Syme, a long-time advocate for assisted dying legislation, who became the
subject of a complaint to the Medical Board of Australia: see Syme v Medical Board
of Australia (Review and Regulation) [2016] VCAT 2150 (heading 5.5, below).
During the course of this case study you will also be introduced to Dr Philip
Nitschke, perhaps Australia’s best-known euthanasia campaigner. Nitschke (now
retired) was the Darwin GP who presided over four lawful assisted deaths that
occurred under the Rights of the Terminally Ill Act 1995 (NT).
The second case study tracks the repeal of the Rights of the Terminally Ill Act by the
Commonwealth, acting under its constitutional power to make laws with respect to
the Territories: Euthanasia Laws Act 1997 (Cth). Nitschke didn’t react well,
famously burning a copy of the Commonwealth Act outside Parliament House in the
early hours of the morning after it passed in a late-night sitting. (Nitschke also
eventually burned his medical registration in Australia and has moved to the
Netherlands).
The third case study aims to give you an overview of Australia’s first State law
legalising assisted dying: the Voluntary Assisted Dying Act 2017 (Vic) [heading 5.5,
below].
As these case studies show, clearly there have been many significant legal changes
in the law on assisted dying, and this area remains controversial.
5.1
The Legal Definition of Death
The module continues with a consideration of the criteria for death. We also
consider the concept of “higher brain death”. We’ll also begin to consider the case
of Airedale NHS Trust v Bland [1993] AC 789 (HL), focusing on key principles from
Lord Goff’s speech. We will return to Bland again, below.
o Human Tissue Act 1983 (NSW) s 33.
o Krommydas v Sydney West Area Health Service [2006] NSWSC 901 [see module
1]
5.2
Refusing Life-Sustaining Medical Treatment
5.2.1 Refusal of treatment by competent patients:
o M Stauch, “Comment on Re B (Adult: Refusal of Medical Treatment) [2002] 2 All
ER 449” (2002) 28 Journal of Medical Ethics 232
o J Keown, “The Case of Ms B: Suicide’s Slippery Slope” (2002) 28 Journal of
Medical Ethics 238
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o P Singer, “Ms B and Diane Pretty: A Commentary” (2002) 28 Journal of Medical
Ethics 234.
o “Death Chosen Over Ugly Future” Weekend Australian 5-6 December 2015, p
11.S
Refusal of medical treatment and suicide: what if a patient’s desire, in refusing lifesupporting or sustaining treatment, is clearly suicidal?
o Crimes Act 1900 (NSW) ss 31A, 31C, 574B.
o In the case of H Limited [2010] SASC 176 (briefly noted).
o Re JS [2014] NSWSC 302 (briefly noted).
o Kings College Hospital NHS Foundation Trust v C [2015] EWCOP 80 (30 Nov.
2015). The media reported in this case that the court granted the woman the
right to die because she had “lost her sparkle”.
We now turn to some important Australian cases on refusing medical treatment:
Rossiter is the leading case on withdrawal of treatment from competent patients:
o Brightwater Care Group v Rossiter [2009] WASC 229.
o Western Australia Criminal Code ss 259, 262
5.2.2 Advance directives and incompetent patients:
o Hunter and New England Area Health Service v A [2009] NSWSC 761. This is the
leading NSW case on withdrawal of treatment from non-competent patients.
5.2.3 Advance directives and legislation
o Guardianship Act 1987 (NSW) ss 6-6F.
o Medical Treatment Planning and Decisions Act 2016 (Vic).
5.3
Withdrawal of Life-Supporting Treatment from incompetent patients
5.3.1 Incompetent patients, best interests, and “futile” treatment:
o Airedale NHS Trust v Bland [1993] AC 789 (HL). Here we circle back to the Bland
decision and consider the legal basis upon which Anthony Bland’s doctors
lawfully withdrew treatment from him in the certain knowledge that his death
was certain to follow. We subject the reasoning in the case to some critical
scrutiny.
o Auckland Health Board v A-G [1993] 1 NZLR 235 (briefly noted). Does this NZ
case provide a better rationale, in your view, than the Bland case?
5.3.2 Disputes between treating physicians and family:
What happens when treating physicians cannot reach agreement with the family
members about the withdrawal of life-supporting treatment from an incompetent
family member? What lessons and principles emerge from these cases?
o Northridge v Central Sydney Area Health Service [2000] NSWSC 1241 (29
December 2000).
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o Isaac Messiha (by his tutor Magdy Messiha) v South East Health [2004] NSWSC
1061
5.3.3 Disputes between the patient and treating physicians:
Note the following dicta from Application of Justice Health; re a Patient [2011]
NSWSC 432 (30 March 2011), per Brereton J:
“No patient has a right to insist on being given any particular treatment. The
patient’s right is that the medical practitioner use reasonable professional
care in the interests of the patient’s health and wellbeing. A patient is not
entitled to insist on being prescribed particular drugs or receiving particular
treatment but to that treatment, which the medical practitioner, using
reasonable care, judges is best for the patient in the circumstances.
It seems to me that it would be a rare case in which the Court would, by
mandatory injunction, require a medical practitioner to render to a patient a
particular form of medical treatment, which the practitioner genuinely and
reasonably thought was not warranted or appropriate in the
circumstances...”
5.4.4 Gravely injured neonates:
o Harriet Alexander, “Push to change advice on premature babies” Sun Herald, 9
November 2015 (p 5).
o The Hospital v S (a minor) [2019] NSWSC 642.
5.4.5 Conjoined twins:
In this topic, we return to the concept of a “devil’s choice”, first introduced at the
beginning of module 4. Do you agree with the basis on which the court in In re A
ordered the separation operation spared Jodie’s life, but caused Mary’s death?
o In re A (Minors) (Conjoined Twins: Medical Treatment), The Times, 10 October
2000.
o State of Qld v Alyssa Nolan & Anor [2001] QSC 174 (Chesterman J)
5.4.6 Palliative care:
We will pause at this point to briefly consider some short scenarios that raise legal
issues that we have covered in the module so far. One of these scenarios raises the
issue of the lawful provision of pain relief and the legal justification for palliative
care practices.
o Criminal Code (WA) s 259
o Criminal Code (QLD) s 282A
o Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 17.
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5.5
Euthanasia & Assisted Dying:
Time-permitting, we will round off the unit by considering the issue of “euthanasia”.
However, most of the items below have previously been considered in the course of
covering the topics above.
o Syme v Medical Board of Australia (Review and Regulation) [2016] VCAT 2150.
o Voluntary Assisted Dying Bill 2017 (NSW) (consultation draft):
http://legislation.nsw.gov.au/~/view/bill/e04dab6e-c1ae-4bda-8880e9130923655d
o “Enabling the angels of death?” Sydneyhealthlaw blog, 7 June 2017:
https://sydneyhealthlaw.com/2017/06/07/enabling-the-angels-of-death/
o Voluntary Assisted Dying Act 2017 (Vic) selected sections. On 10 December
2019, Western Australia became the second State to pass assisted dying
legislation: Voluntary Assisted Dying Act 2019 (WA) (not extracted).
o Euthanasia Laws Act 1997 (Cth)
o Criminal Code Amendment (Suicide Related Material Offences) Act 2005 (Cth).
o Roger Magnusson, Angels of Death: Exploring the Euthanasia Underground,
MUP, 2002, pp 7-22
o Raymond Tallis, “Should the Law on Assisted Dying be Changed? Yes” (2011) 342
British Medical Journal d2355.
o Kevin Fitzpatrick, “Should the Law on Assisted Dying be Changed? No” (2011)
342 British Medical Journal d1833.
o Richard Glover, “Why the Vulnerable Flock to Dr Death” Sydney Morning Herald
17 April 1999, p S2.
Further Reading:
• Voluntary Assisted Dying Bill 2021 (NSW):
https://legislation.nsw.gov.au/view/html/bill/85314b04-2cc1-4f50-bd44-8e21a34d3f1e
• Rosalind McDougall et al., “This is unchartered waters for all of us: challenges
anticipated by hospital physicians when voluntary assisted dying becomes legal in
Victoria” Australian Health Review 2020; 44(3):399-404.
• Steven Trankle, “Decisions that hasten death: double effect and the experiences of
physicians in Australia” BMC Medical Ethics 15: 26 (2014).
https://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-15-26
• Leah B. Rosenberg, “What are two days worth? Facing dilemmas together at the end of
life. New England Journal of Medicine 2020; 382:890-891.
• Alon Januszewicz, Andrew gill, “Parens patriae – withdrawal of life-sustaining
treatment” Australian Health Law Bulletin, October 2019, p 155.
• “Death With Dignity: A Case Study” (2000) 132 Annals of Internal Medicine 504. A
doctor’s first involvement in lawful assisted suicide in Oregon.
• Legislation, and interim reports on medically assisted dying in Canada:
https://www.canada.ca/en/health-canada/services/medical-assistance-dying.html
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Re JS [2014] NSWSC 302.
Ben White et al., “Victoria's voluntary assisted dying law: clinical implementation as the next
challenge” Medical Journal of Australia 2019; 210(5), published online 25 February 2019.
Lindy Willmott et al., “When is it in the child’s best interests to withhold or withdraw
life-sustaining treatment? An evolving Australian jurisprudence” Journal of Law And
Medicine 2018; 25:944-972.
David Miller et al., “Advance Euthanasia Directives: A Controversial Case and its
Implications” Journal of Medical Ethics; 2018, online first, 3 March 2018.
Bob Roehr, “Assisted Dying in US and Canada: Controversy Subsides after Legalisation”
BMJ 2018; 360:k503.
Parliament of Victoria, Legislative Council, Legal and Social Issues Committee, Inquiry
into end of life choices: Final Report, June 2016:
https://www.parliament.vic.gov.au/lsic/inquiry/402
Agnes van der Heide, “End of life decision-making in the Netherlands over 25 years”
New England Journal of Medicine 2017; 377:492-494.
Syme v Medical Board of Australia (Review and Regulation) [2016] VCAT 2150.
Director, Clinical Services, Child & Adolescent Health Services and Kiszko [2016] FCWA
75 (1 September 2016).
Ian Freckelton QC, “Parents’ Opposition to Potentially Life-saving Treatment for Minors:
Learning from the Oshin Kiszko Litigation” Journal of Law and Medicine 2016; 24: 61-71.
Briony Murphy, “Voluntary Euthanasia Laws in Australia: Are We Really Better Off
Dead?” Medical Journal of Australia 2016; 205(6): 254-255.
Steven Trankle, “Decisions That Hasten Death: Double Effect and the Experiences of
Physicians in Australia” BMC Medical Ethics 2014; 15:26:
https://bmcmedethics.biomedcentral.com/articles/10.1186/1472-6939-15-26
Distinguishing assisted suicide from manslaughter and murder: R v Justins [2010]
NSWCCA 242.
Cairns and Hinterland Hospital and Health Service v JT [2014] QSC 251.
Parliament of Victoria, Legal and Social Issues Committee, Inquiry into end of life issues,
Final Report, June 2016: http://www.parliament.vic.gov.au/lsic/article/2609
Lindy Willmott et. al., “(Failed) Voluntary Euthanasia Law Reform in Australia: Two
Decades of Trends, Models and Politics” UNSW Law Journal 2016; 39(1):1-46.
R v Maxwell [2003] VSC 278 (24 July 2003).
Julie-Anne Davies, “Suicide Drug of Choice in Mail” Weekend Australian, 14-15 March
2009, pp 1, 4.
Richard Huxtable, “From Twilight to Breaking Dawn? Best Interests, Autonomy, and
Minimally Conscious Patients: M v N 2015 EWCOP 76 (Fam)” Medical Law Review, doi
10.1093/medlaw/fww008.
Portsmouth NHS Trust v Wyatt [2004] EWHC 2247 (Fam).
An NHS Trust v MB [2006] EWHC 507 (15 March 2006).
Ben White et al, “What Does ‘Futility’ Mean? An Empirical Study of Doctors’
Perceptions” Medical Journal of Australia 2016; 204:318.
Amir Attaran, “Unanimity on Death with Dignity – Legalizing Physician-Assisted Dying in
Canada” New England Journal of Medicine 2015; 372:2080-2082.
Carter v Canada (Attorney-General) 2015 SCC 5 (finding that “prohibition on physicianassisted dying is void insofar as it deprives a competent adult of such assistance where
(1) the person affected clearly consents to the termination of life; and (2) the person
has a grievous and irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to the individual in the
circumstances of his or her condition”.
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Kings College Hospital NHS Foundation Trust v C. [2015] EWCOP 80 (30 Nov. 2015).
Wye Valley NHS Trust v B [2015] EWCOP 60 (an interesting comparison with Re C).
Cairns and Hinterland Hospital v JT by JT’s Guardian [2014] QSC 251 (illustrates a set of
circumstances in which the court ruled that it was in the patient’s best interests for lifesupporting treatment to be withdrawn).
Owen Dyer et al., “Assisted Dying: Law and Practice Around the World” BMJ 2015;
351:h4481.
Qing Yang, Geoffrey Miller, “East-West Differences of Perception in Brain Death”
Journal of Bioethical Inquiry 2015; 12:211-225.
Lindy Willmott et. al. “”Best Interests” and Withholding and Withdrawing LifeSustaining Treatment from an Adult who Lacks Capacity in the Parens Patriae
Jurisdiction” (2014) 21 Journal of Law and Medicine 920.
Lindy Willmott et al., “Withholding and withdrawing life-sustaining treatment in a
patient’s best interests: Australian judicial deliberations” Medical Journal of Australia
2014; 201(9):545-547.
Kei Lui et al., “Perinatal care at the borderlines of viability: a consensus statement
based on a NSW and ACT consensus workshop” Medical Journal of Australia 2006;
185(9):495-500.
Michele Levinson, Amber Mills, “Cardiopulmonary Resuscitation – Time for a Change in
the Paradigm? Medical Journal of Australia 2014; 201(3): 152-154.
Paul Biegler, “Memo to Philip Nitschke: Let’s Keep Euthanasia for the Dying”, The
Conversation, 8 July 2014: http://theconversation.com/memo-to-philip-nitschke-letskeep-euthanasia-for-the-dying-28846
Andrew Siegel et al., “Pediatric Euthanasia in Belgium: Disturbing Developments”
(2014) 311 Journal of the American Medical Association 1963-1964.
David Orentlicher et al., “The Changing Legal Climate for Physician Aid in Dying” (2014)
311 Journal of the American Medical Association 1961-1962.
Lawrence Gostin, “Legal and Ethical Responsibilities Following Brain Death: the McMath
and Munoz Cases” Journal of the American Medical Association, published online 24
January 2014.
Lindy Willmott et al, “Withholding and Withdrawal of ‘Futile’ Life-Sustaining Treatment:
Unilateral Medical Decision-making in Australia and New Zealand” (2013) 20 Journal of
Law and Medicine 907.
NSW Health, End of Life Care and Decision-Making Guidelines (NSW Health
Department, 2005).
W v M [2011] EWHC 2443 (Fam) (withdrawal of artificial hydration and nutrition from a
person in a persistent, minimally conscious state).
Julian Sheater, “Withdrawing and Withholding Artificial Nutrition and Hydration from
Patients in a Minimally Conscious State: “Re M and its Repercussions” (2013) 39 Journal
of Medical Ethics 543-546.
Julian Savulescu, “Abortion, Infanticide, and Allowing Babies to Die, 40 Years On”,
(2013) 39 Journal of Medical Ethics 257-259.
Julia Werren et al., “Avoiding a Fate Worse than Death: An Argument for Legalizing
Voluntary Physician-Assisted Euthanasia” (2012) 20 Journal of Law and Medicine 184203.
The Queen on the application of Nicklinson v Ministry of Justice [2012] EWHC 2381
(refusing to create an exception to the law of murder for assisted suicide; holding that a
blanket ban on voluntary euthanasia was not incompatible with Article 8 of the ECHR).
R v Nielsen [2012] QSC 29 (16 February 2012).
Application of Justice Health; re a Patient [2011] NSWSC 432.
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Andrew Lu, “End of Life Directions and Self Determination – H Ltd v J Australian Health
Law Bulletin, August 2010, pp 94-95.
Roger Magnusson, “The Traditional Account of Law and Ethics at the End of Life, and its
Discontents” (2009) 6 Journal of Bioethical Inquiry 307-324.
J Andrew Billings, “Double Effect: A Useful Rule that Alone Cannot Justify Hastening
Death” (2011) 37 Journal of Medical Ethics 437-440.
Michael Ashby, “The Futility of Futility: Death Causation is the ‘Elephant in the Room’ in
Discussions about Limitations of Medical Treatment” (2011) 8 Journal of Bioethical
Inquiry 151-154.
Cameron Stewart, “Futility Determination as a Process: Problems with Medical
Sovereignty, Legal Issues and the Strengths and Weaknesses of the Procedural
Approach” (2011) 8 Journal of Bioethical Inquiry 155-163.
Andrew McGee, “Ending the Life of the Act/Omission Dispute: Causation in Withholding
and Withdrawing Life-Sustaining Measures” (2011) Legal Studies, 2011: DOI:
10.1111/j.1748-121X.2011.00193.x
Lorana Bartels, Margaret Otlowski, “A Right to Die? Euthanasia and the Law in
Australia” (2010) 17 Journal of Law and Medicine 532-555.
Special issue: Legal challenges and new horizons for medicalised death and
dying: special issue of the Medical Law Review, vol 18, issue 4 (Winter 2010).
H Limited v J [2010] SASC 176 (15 June 2010).
Russel Ogden, “Suicide, Canadian Law, and Exit International’s ‘Peaceful Pill’” (2010)
31(2) Health Law in Canada 37-64.
Clare Dyer, “Have We Heeded the Lessons from Shipman?” (2010) 341 British Medical
Journal c5711.
Christopher Ryan, Sascha Callaghan, “Legal and Ethical Aspects of Refusing Medical
Treatment After a Suicide Attempt: The Wooltorton Case in the Australian Context”
(2010) 193 Medical Journal of Australia 239-242.
Andrew McGee, “Finding a Way Through the Ethical and Legal Maze: Withdrawal of
Medical Treatment and Euthanasia” (2005) 13 Medical Law Review 357-385.
Margaret Battin, “The Irony of Supporting Physician-Assisted Suicide: A Personal
Acccount” (2010) Medicine, Health Care & Philosophy (online at DOI 10.1007/s11019010-9274-z ).
NSW Health, Conflict Resolution in End of Life Settings Project – Working Group Report,
20 May 2010: http://www.health.nsw.gov.au/pubs/2010/conflict_resolution.html
“Withdrawing Treatment at the Direct or Indirect Request of Patients or in their Best
Interests: NHEAHS v A; Brightwater GC v Rossiter; and Australian Capital Territory v JT”
(2009) 17 Journal of Law & Medicine 349-354.
Lorana Bartels & Margaret Otlowski , “A Right to Die? Euthanasia and the Law in
Australia” (2010) 17 Journal of Law & Medicine 532-555.
Rodney Syme, “Necessity to Palliate Pain and Suffering as a Defence to Medical
Homicide” (2009) 17 Journal of Law & Medicine 439-451.
Colleen Davis, “Separating conjoined Twins: A Medical and Criminal Law Dilemma”
(2010) 17 Journal of Law & Medicine 594.
Seema Shah, Franklin Miller, “Can We Handle the Truth? Legal Fictions in the
Determination of Death” (2010) 36(4) American Journal of Law & Medicine ??
Tom Faunce & Cameron Stewart, “The Messiha and Schiavo Cases: Third-Party Ethical
Interventions in Futile Care Disputes” (2005) 183 Medical Journal of Australia 261.
Maria Silveira, Scott Kim, Kenneth Langa, “Advance Directives and Outcomes of
Surrogate Decision Making Before Death” (2010) 362 New England Journal of Medicine
1211-1218.
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Ian Kerridge, Michael Lowe, Cameron Stewart, Ethics and Law for the Health
Professions, 3rd ed., Federation Press, 2009, Chapter 26 (end-of-life care: palliative care,
euthanasia and assisted suicide).
Liliana Segura, “Do You Want the Right to Kill Yourself?” 7 October 2009, at:
http://motherjones.com/environment/2009/10/do-you-want-right-kill-yourself
Hunter and New England Area Health Service v A [2009] NSWSC 761.
Anne Morris, “Selective Treatment of Irreversibly Impaired Infants: Decision-Making at
the Threshold” (2009) 17 Medical Law Review 347-376.
Colleen Cartwright, “The Rights of the Terminally Ill Act Revisited” (2008) 17(1-2)
Australian Health Law Bulletin 2-17.
Malcolm Parker, Colleen Cartwright, Gail Williams, “Impact of Speciality on Attitudes of
Australian Medical Practitioners to End-of-Life Decisions” (2008) 188 Medical Journal of
Australia 450-456.
B. Chabot, Goehardt, “A Survey of Self-Directed Dying Attended by Proxies in the Dutch
Population” (2009) 68 Social Science & Medicine 1745-1751.
Diane Martindale, “A Culture of Death” (reporting on Canadian researcher Russel
Ogden), Scientific American, June 2005, at:
http://www.scientificamerican.com/article.cfm?id=a-culture-of-death
Krommydas v Sydney West Area Health Service [2006] NSWSC 901
Re A (children)(conjoined twins) [2000] 4 All ER 961-1070.
R (Pretty) v DPP [2002] 1 AC 800.
Re B (adult: refusal of medical treatment) [2002] 2 All ER 449.
R v Shirley Justins [2008] NSWSC 1194 (12 November 2008).
Washington v. Glucksberg 521 U.S. 702 (1997).
Vacco v. Quill 521 U.S. 793 (1997).
R v Crabbe [1985] HCA 22 (confirming that a person who does an act knowing that it is
“probable that death or grievous bodily harm will result, is guilty of murder if death in
fact results” [9].
R. Steinbrook, “Physician-Assisted Death – From Oregon to Washington State” (2008)
359 New England Journal of Medicine 2513-2515.
Roger Rosenberg, “Consciousness, Coma, and Brain Death – 2009” (2009) 301 Journal
of the American Medical Association 1172-1174.
Stephen W. Smith, “Some Realism About End of Life: The Current Prohibition and the
Euthanasia Underground” (2007) 33 American Journal of Law & Medicine 55-95.
Katrina George, “A woman’s choice? The gendered risks of voluntary euthanasia and
physician-assisted suicide” (2007) 15 Medical Law Review 1-33.
D Neil, C. Coady, J. Thompson, H. Kuhse, “End-of-Life Decisions in Medical Practice: A
Survey of Doctors in Victoria (Australia)” (2007) 33 Journal of Medical Ethics 721-725.
Penny Lewis, “The empirical slippery slope from voluntary to non-voluntary euthanasia”
(2007) 35 Journal of Law, Medicine & Ethics 197-210.
Roger Magnusson, “The Devil’s Choice: Re-Thinking Law, Ethics and Symptom Relief in
Palliative Care” (2006) 34(3) Journal of Law, Medicine & Ethics 559-569.
Helen McCabe, “End-of-life Decision-Making, the Principel of Double Effect, and the
Devil’s Choice: A Response to Roger Magnusson” (2008) 16 Journal of Law and
Medicine 74.
Lawrence Gostin, “Physician-Assisted Suicide: A Legitimate Medical Practice?” (2006)
295 Journal of the American Medical Association 1941-3.
Clive Seale, “National Survey of End-of-Life Decisions Made by UK Medical
Practitioners” (2006) 20 Palliative Medicine 3-10.
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NSW Health, Guidelines for End-of-Life Care and Decision-Making (2005), available at
http://www0.health.nsw.gov.au/policies/gl/2005/pdf/GL2005_057.pdf
NSW Health, Organ Donation After Cardiac Death: NSW Guidelines, 19 June 2007, at:
http://www.health.nsw.gov.au/policies/gl/2007/GL2007_012.html
BWV [2003] VCAT 121 (28 February 2003)
Ronald Cranford, “Facts, Lies and Videotapes: the Permanent Vegetative State and the
Sad Case of Terri Schiavo” Journal of Law, Medicine & Ethics, Summer 2005, p 363.
Lawrence O. Gostin, “Ethics, the Constitution and the Dying Process: The Case of
Theresa Marie Schiavo” (2005) 293 JAMA 2403-2407.
Danuta Mendelson & Timothy Jost, “A Comparative Study of the Law of Palliative Care
and End of Life Decision-making” (2003) 31 Journal of Law, Medicine & Ethics 130-143.
Roger Magnusson, “Underground Euthanasia and the Harm Minimization Debate”
(2004) 32 Journal of Law, Medicine & Ethics 486-495.
Jurriaan de Haan, “The New Dutch Law on Euthanasia” (2002) 10 Medical Law Review
57.
Eimear Smith, Mark Delargy, “Locked-in Syndrome” (2005) 330 British Medical Journal
406 (reviews the disease that the patient in Auckland Area Health Board v A-G (above)
had).
D Mendelson and M. Ashby, “The Medical Provision of Hydration and Nutrition: Two
Very Different Outcomes in Victoria and Florida” (2004) 11 Journal of Law and Medicine
282.
Johan Legermaate, “The Dutch Euthanasia Act and Related Issues” (2004) 11 Journal of
Law and Medicine 312.
Roger Magnusson, Angels of Death: Exploring the Euthanasia Underground, MUP, 2002,
pp 260-281.
Cameron Stewart, “Legal Constructions of Life and Death in the Common Law” (2002) 2
Oxford University Commonwealth Law Journal 67.
Paul Biegler, Cameron Stewart, Julian Savulescu and Loane Skene, “Determining the
Validity of Advance Directives” (2000) 172 Medical Journal of Australia 545.
Kristin Savell, “Human Rights in the Age of Technology: Can Law Rein in the Medical
Juggernaut?” (2001) 23 Sydney Law Review 423.
NHS Trust A v M [2001] 2 WLR 942 (This is a Bland-type case, decided in the context of
the Human Rights Act 1998 (UK)).
Re G [1997] 2 NZLR 201 (following Auckland Area Health Board v A-G)
Shortland v Northland Health Ltd [1998] 1 NZLR 433.
Roger Magnusson, “The Sanctity of Life and the Right to Die: Social and Jurisprudential
Aspects of the Euthanasia Debate in Australia and the United States” (1997) 6 Pacific
Rim Law & Policy Journal 1-83.
Roger Magnusson, “The Future of the Euthanasia Debate in Australia” (1996) 20
Melbourne University Law Review 1108-1142.
Margaret Somerville, “Legalising Euthanasia: Why Now?” (1996) 68 Australian
Quarterly 1-14.
Petersen, “Selective Treatment Decisions and the Legal Rights of Very Young Infants”
(1994) 160 Medical Journal of Australia 377.
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SUPPLEMENTARY MODULES
Module 6
REPRODUCTIVE TECHNOLOGY
[NOTE: We are unlikely to cover Modules 6-7 in class. However, issues
relating to this module may be relevant to the assignment, and may be a
topic for the essays. Material not covered in class will not be assessed in
the final exam]
This module examines select issues relating to the legal regulation of reproductive
technology in Australia. By the end of this module you should:
o be able to provide an overview of the structure of Australia’s reproductive
technology laws;
o be familiar with the NSW statutory provisions that deal with the status of
children conceived using artificial fertilisation;
o be familiar with recent Australian debates over reproductive technology;
o be able to provide an overview of Australia’s surrogacy laws;
o be able to evaluate the enforceability of surrogacy contracts in Australia.
Reality Check:
o Tom Joyner, “The underground sperm smuggling ring that helps Palestinian
women have their imprisoned husbands’ babies” ABC News, 2 January 2022:
https://www.abc.net.au/news/2022-01-02/palestinian-women-smuggle-spermfrom-imprisoned-husbands/100718618
o Despina Meris, “Experience: I thought I’d never meet my newborn son” The
Guardian, 28 August 2020.
o Melissa Davey, “Fertility Expert Attacks Critics of 62-Year-Old First-Time
Mother” The Guardian, 3 August 2016.
o Esther Han, “Government Toughens IVF Laws to Protect Embryo Donor and
Kids” Sydney Morning Herald, 25 October 2018:
https://www.smh.com.au/politics/nsw/government-toughens-ivf-laws-toprotect-egg-donors-and-kids-20181024-p50bpb.html
o Tim Barlass, “Gammy: How the Story Unfolded” Sydney Morning Herald, 10
August 2014.
o Lindsay Mordoch, Rachel Browne, “Gammy’s Surrogate Mother Will not Allow
David and Wendy Farnell to Take her Baby Boy” Sydney Morning Herald, 11
August 2014.
o Tim Barlass, “When Kindness Turns Cruel”, The Sun-Herald, 10 August 2014, p 6.
o IVF Life After Death: “A Wish Come True” New Idea (2002)
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o Is it ever right to “use someone” (as a means to an end)? M Spriggs & J
Savulescu, “Saviour Siblings” (2002) Journal of Medical Ethics 289.
o The gift of life: “Two Halves See the Genetic Whole” Sydney Morning Herald, 12 November 2003, p 2
6.1
Regulation of Reproductive Technology
o Assisted Reproductive Technology Act 2007 (NSW) [selected sections as
amended by the Health Legislation Amendment Act (No 3) (NSW)]
o Surrogacy Act 2010 (NSW) [selected sections]
o Status of Children Act 1996 (NSW) ss 14-15
Posthumous use of gametes and embryos:
o Assisted Reproductive Treatment Act 2008 (Vic) ss 46-48; cf. Assisted
Reproductive Technology Act 2007 (NSW) s 23 [not extracted]
o Jocelyn Edwards; Re the estate of the late Mark Edwards [2011] NSWSC 478
[extracted in module 2.2 above].
Secrecy & the “right to know” under ART legislation:
o Assisted Reproductive Technology Act 2007 (NSW) ss 15, 31-32, 37-40
ART & the single woman:
o Leesa Meldrum, “Go and Get a Husband” Sydney Morning Herald 3 April 2002, p
12
o Susan Halliday, “Church and State on Infertile Ground” The Australian 19 April
2002
Cloning, and other legislative restrictions on ART
o Stephanie Dalzell, “Ground-breaking Technique to Reduce Risk of Potentially
Fatal Genetic Diseases Could Soon be Legal in Australia” ABC News online, 3
February 2021: https://www.abc.net.au/news/2021-02-03/australiamitochondrial-donation-to-treat-genetic-disease-bill/13114862
o Assisted Reproductive Technology Act 2007 (NSW) ss 26-29
o Prohibition of Human Cloning for Reproduction Act 2002 (Cth)
o “Test Tube Baby ‘Made to Order’ to Save His Sister” Sydney Morning Herald, 4
October 2000.
o Julie Robotham & Deborah Smith, “Look Who’s Perfect Now”, Sydney Morning
Herald 28-29 August 2004, p 27, 34.
6.2
Surrogacy
o Margaret Otlowski, “Re Evelyn – Reflections on Australia’s First Litigated
Surrogacy Case” (1999) 7 Medical Law Review 38.
o B. Lagan, “Surrogacy: Parents Win New Rights” Sydney Morning Herald, 8 July
2000.
o Application of A and B [2000] NSWSC 640 (7 July 2000)
In 2016, the House of Representatives Standing Committee on Social Policy and
Legal Affairs held an inquiry into surrogacy. The final report is here:
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http://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_
and_Legal_Affairs/Inquiry_into_surrogacy/Report
NSW Department of Justice, Statutory Review – Surrogacy Act 2010 (NSW):
https://www.parliament.nsw.gov.au/la/papers/DBAssets/tabledpaper/webAttachm
ents/73919/Review%20of%20Surrogacy%20Act%202010.pdf
Further Reading:
• Seto v Poon [2021] FamCA 288 (parentage and parental responsibility and residence
following extortion/illegal surrogacy arrangement)
• Nicola Berkovic, “Police called over surrogacy dispute” Weekend Australian 19-20 June
2021, p 9.
• NHMRC, Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical
Practice and Research, NHMRC: 2017. https://www.nhmrc.gov.au/aboutus/publications/ethical-guidelines-use-assisted-reproductive-technology
• Alex Polyakov, Genia Rozen, Freezing eggs for IVF: waste not, want not” MIA InSight, 1
February 2021: https://insightplus.mja.com.au/2021/2/freezing-eggs-for-ivf-waste-notwant-not/
• Alex Polyakov, Genia Rozen, “Social egg freezing and donation: waste not, want not”
Journal of Medical Ethics 2021; doi:10.1136/ medethics-2020-106607.
• Xavier Symons, “The right to know versus the right to privacy: donor anonymity and the
Assisted Reproductive Treatment Amendment Act 2016 (Vic)” Med J Aust 2017; 207 (9):
377-378.
• Georgina Chambers et. al., “Assisted Reproductive Technology in Australia and New
Zealand: Cumulative Live Birth Rates as Measures of Success” Medical Journal of
Australia 2017; 207(3), 24 July 2017
• ABC v Thomson Medical Pty Ltd, Singapore Court of Appeal: [2017] SGCA 20:
http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/court-ofappeal-judgments/22753-acb-v-thomson-medical-pte-ltd-and-others
• Cosima Marriner, “’Secret Son’ Embryo Donor Case Prompts Overhaul of IVF Industry
Practice’ Sydney Morning Herald 5 June 2016:
http://www.smh.com.au/national/secret-son-embryo-donor-case-prompts-overhaulof-ivf-industry-practice-20160602-gpaenm
• Sam Everingham et. al. “Australians’ Use of Surrogacy” Medical Journal of Australia
2014; 201(5):270-273.
• Louise Johnson et. al. “Barriers for Domestic Surogacy and Challenges of Transnational
Surrogacy in the Context of Australians Undertaking Surrogacy in India” Journal of Law
and Medicine 2014; 22:136-154.
• Martyn Stafford-Bell et. al. “Outcomes of Surrogacy Undertaken by Australians
Overseas” Medical Journal of Australia 2014; 201(6):330-333.
• Michelle de Souza, “Regulating Preimplanatation Genetic Diagnosis in Australia:
Disability and Parental Choice” Journal of Law and Medicine 2015; 22:915-933.
• Jenni Millbank, “Rethinking ‘Commercial’ Surrogacy in Australia” Journal of Bioethical
Inquiry 2015; 12:477-490.
• Liezl van Zyl, Ruth Walker, “Surrogacy, Compensation and Legal Parentage: Against the
Adoption Model” Journal of Bioethical Inquiry 2015; 12:383-387.
• Sam Everingham et. al., “Australians’ Use of Surrogacy” Medical Journal of Australia
2014; 201:270-273.
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Jenni Millbank, Isabel Karpin, Anita Stuhmcke, “Towards Facilitative Regulation of
Assisted Reproductive Treatment in Australia” (2013) 20 Journal of Law and Medicine
701.
MAW v Western Sydney Area Health Service [2000] NSWSC 358.
Loane Skene et al., “The Lockhart Committee: Developing Policy through Commitment
to Moral Values, Community and Democratic Processes” (2008) 16 Journal of Law and
Medicine 132-138.
Malcolm Smith, “Reviewing Regulation of Assisted Reproductive Technology in New
South Wales: The Assisted Reproductive Technology Act 2007 (NSW)” (2008) 16 Journal
of Law and Medicine 120.
Sarah L. Middleton, Michael D. Buist, “Sperm Removal and Dead or Dying Patients: A
Dilemma for Emergency Departments and Intensive Care Units” (2009) 190 Medical
Journal of Australia 244.
David Molloy, Barbara Hall, Mariannne Illbery, et al., “Oocyte Freezing: Timely
Reproductive Insurance?” (2009) 190 Medical Journal of Australia 247.
Re McBain; Ex Parte Australian Catholic Bishops Conference [2002] HCA 16 (18 April
2002)
Bernard Dickens, “Preimplantation Genetic Diagnosis and ‘Saviour Siblings’” (2005) 88
International Journal of Gynecology and Obstetrics 91-96.
AB v A-G for the State of Victoria [2005] VCA 180 (27 May 2005) (posthumous sperm
insemination case).
Margaret Otlowski, “Legislative Developments in Australia with Regard to Regulation of
Research Involving Human Embryos and Human Cloning: Implications for Embryonic
Stem Cell Research” (2004) 12(5) Australian Health Law Bulletin 57.
Belinda Bennett, “Posthumous Reproduction and the Meanings of Autonomy” (1999)
23 Melbourne University Law Review 286.
Belinda Bennett, “The Human Embryo as Property? Cryopreservation and the
Challenges for Law” (2000) 7 Journal of Law and Medicine 434
Lindy Willmott & Ben White, “Life After Death: Harvesting Sperm of the Deceased”
(2003) 11(8) Australian Health Law Bulletin 85.
Mrs U v Centre for Reproductive Medicine, Court of Appeal (UK), 24 April 2002.
Gabor Kovacs et al., “Community Attitudes to Assisted Reproductive Technology : a 20Year Trend” (2003) 179 Medical Journal of Australia 536.
Sex Discrimination Amendment Bill 2002 (Cth) (in response to Re McBain).
Danis, “Sexism and the ‘Superfluous Female: Arguments for Regulating PreImplantation Sex Selection” (1995) 18 Harvard Women’s Law Journal 219.
Bernard Dickens, “Can Sex Selection be Ethically Tolerated?”(2002) 28 Journal of
Medical Ethics 335.
N Levy, “Deafness, Culture, and Choice” (2002) 28 Journal of Medical Ethics 284.
Regina v Human Fertilisation and Embryology Authority; Ex Parte Blood [1997] 2 WLR
806
L Skene & M Parker, “The Role of the Church in Developing the Law” (2002) 28 Journal
of Medical Ethics 215.
Janu, “Surrogacy Arrangements in Australia: Analysis of the Legal Framework” (1995) 9
Australian Journal of Family Law 200.
Application of D and E [2000] NSWSC 646 (7 July 2000)
Mirko Bagaric, “Eugenics – So What’s Wrong with Improving the Quality of the Human
Species” (2001) 20 Monash Bioethics Review 11.
Sally Sheldon & Stephen Wilkinson, “Hashmi and Whitaker: An Unjustifiable and
Misguided Distinction?” (2004) 12 Medical Law Review 137-163.
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Module 7
PRIVACY, CONFIDENTIALITY AND ACCESS TO
MEDICAL INFORMATION
This module looks at the duty of confidence that health professionals owe to
patients with respect to patient medical information. It then turns to privacy
interests more generally, including in an electronic environment. Finally, it
considers whether patients have the right to be informed about the information
contained in “their” medical records, and if so, on what basis. By the end of this
module you should:
o understand the nature and scope of the health professionals’ duty of
confidentiality to patients;
o understand the nature and limits of the public interest exception to
confidentiality;
o be able to analyse critically whether the Tarasoff decision applies in Australia;
o be familiar with relevant NSW legislation that affects confidentiality of health
information;
o be familiar with the scope of State and Federal privacy legislation and its
application to the health sector;
o be familiar with the ongoing debate over privacy and health records;
o be familiar with the main arguments in the debate over patient access to
medical records, and the limitations of common law rights of access in the light
of the High Court decision in Breen v Williams;
o be familiar with the relevant statutory provisions at Commonwealth and State
level that permit patients to access their medical records.
Reality Check:
o Daniel Sokol, “Is Doctor-Patient Confidentiality Dying a Slow Death?” BMJ 2018;
363:k4313.
o Perri Klass, “Guarding Privacy May Not Always Protect Patients” New York
Times, 11 July 2011.
o Jeremy Kirk, “HealthEngine’s Latest Problem: A Data Breach”, 29 June 2018,
published at: https://www.databreachtoday.com/healthengines-latestproblem-data-breach-a-11147
7.1
Confidentiality – Case Law and Discussion
o Duncan v Medical Practitioners Disciplinary Committee [1986] 1 NZLR 513.
o Slater v Bissett (1986) 69 ACTR 25.
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X v Y [1988] 2 All ER 648 [not extracted in materials]
W v Egdell [1990] 1 All ER 835 (CA).
Reg. v Department of Health, ex parte Source Informatics Ltd [2000] 2 WLR 940.
Tarasoff v Regents of the University of California (1976) 551 P 2d 334 (SC
California) (not extracted, discussed in Mendelson below).
o Danuta Mendelson, “‘Mr Cruel’ and the Medical Duty of Confidentiality” (1993)
1 Journal of Law and Medicine 120.
o Note: Sullivan v Moody; Thomson v Connon [2001] HCA 59 [not extracted]
o
o
o
o
7.2
Privacy – Federal Legislation
o The Australian Privacy Principles (APP) unified separate sets of principles that
had previously applied to the Cth public sector, and the private sector (see
Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth). The APPs
are contained in Schedule 1 of the Privacy Act 1988; note also the “permitted
health situations for the collection, use and disclosure of health information” in
s. 16B. Note that the APPs include special provisions for “sensitive
information”, and that health information is sensitive information. APP 3 deals
with collection; APP 6 deals with use and disclosure; APP with a person’s right to
access their own personal information.
o Privacy Act 1988 (Cth), ss 95-95AA. S 95 is the authorising provision for
guidelines for the protection of privacy in medical research; s 95A is the
authorising provision for guidelines dealing with the application of the APPs to
health information, while s 95AA authorises guidelines relating to genetic
information.
o National Health & Medical Research Council (NHMRC), Use and Disclosure of
Genetic Information to a Patient’s Genetic Relatives Under s. 95AA of the Privacy
Act 1988 (Cth), 27 October 2009 [selected extracts].
7.3
Privacy & Confidentiality – State Legislation (NSW)
o Health Administration Act 1982 (NSW) s 22.
o Public Health Act 2010 (NSW) ss 56-58.
o Evidence Act 1995 (NSW), Pt 3.10
o Children and Young Persons (Care and Protection) Act 1998 (NSW) s 27.
o Health Records and Information Privacy Act 2002 (NSW) – Schedule 1 (Health
Privacy Principles) [not extracted]
7.4
Privacy and On-line Health Information Systems; legislation and policy
The specific duty of confidence that doctors (and health care workers generally)
owe to patients can be distinguished from the more general issue of privacy within
the health care context. The issue of privacy interests in medical information must
also be understood in the context of the trend towards electronic health care
records.
o This reading aims to give you a sense of how the health system is evolving
towards an integrated system that supports interoperability and thus an
electronic health record: Australian Health Ministers’ Conference, National eHealth Strategy, December 2008.
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o Healthcare Identifiers Act 2010 (Cth), see:
http://www.austlii.edu.au/au/legis/cth/consol_act/hia2010199/
o The Health Legislation Amendment (eHealth) Act 2015 (Cth):
http://www5.austlii.edu.au/au/legis/cth/num_act/hlaa2015313/ Amongst
other things, this Act creates an opt-out system for participation in the My
Health Record system in trials: opt-out will be implemented nationally if these
trials are successful. This Act also amends Part 3 of the Healthcare Identifiers
Act: the rules for collection, use and disclosure of a person’s healthcare
identifier.
o Personally Controlled Electronic Health Records Act 2012 (Cth) [re-named My
Health Record Act 2012 by the 2015 amending Act above]
http://www.austlii.edu.au/au/legis/cth/consol_act/mhra2012180/
o Australian Law Reform Commission (ALRC), For Your Information: Australian
Privacy Law & Practice, Report 108 (May 2008). Selected extracts of
recommendations relating to health privacy. See, further,:
http://www.alrc.gov.au/publications/report-108
o Meredith Carter, “Patient Privacy in the Electronic Era: Legal and Privacy
Considerations (2000) 8(9) Australian Health Law Bulletin 117.
The Department of Health has a website explaining the personally controlled
electronic health record system: My Health Record:
https://myhealthrecord.gov.au/internet/mhr/publishing.nsf/content/home
See also the Australian Digital Health Agency: http://www.digitalhealth.gov.au/
7.5
Access to Medical Information – Case Law and Discussion
o Breen v Williams (1996) 138 ALR 259 [not extracted in materials]
o Sydney Bloch, Claire E Riddell & Tamsin J Sleep, “Can Patients Safely Read their
Psychiatric Records?” (1994) 161 Medical Journal of Australia 665.
7.6
Access to Medical Information – Legislation
State and Federal legislation now grants patients a right to access their medical
records and information in both the public and private sectors:
o Freedom of Information Act 1982 (Cth) ss 11, 47F.
o Privacy Act 1988 Schedule 1 (Australian Privacy Principles) APP 12. (see 3.2
above)
o Government Information (Public Access) Act 2009 (NSW) ss 9, 13-14.
o Health Records and Information Privacy Act 2002 (NSW) ss 22-37
7.7
Competing Claims to Ownership Between Doctors
o Jason Downing, “Ownership of Medical Records and Duties of Confidentiality in
Medical Practice” (2001) 8 Journal of Law and Medicine 460.
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Further Reading:
• Health Care Complaints Commission v Livermore [2021] NSWCATOD 48:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCATOD/2021/48.html
• Jo Best, “Slow Death of the Bleep: Why Hospital Pagers Won’t Die” BMJ 2021;
372:n684.
• Lloyd Miller, Andrew Lu, “Inadvertent disclosures of health information are actionable
privacy breaches – SD and SE v Northside Clinic” Australian Health Law Bulletin,
October 2020, pp 114-118.
• Gabrielle Wolf, Danuta Mendelson, “The My Health Record System: Potential to
Undermine the Paradigm of Patient Confidentiality” UNSW Law Journal 2019;
42(2):619-651.
• Jeremy Kirk, “Australia’s Health Engine Caught in Data-Sharing Fiasco”, 25 June 2018,
published at: https://www.bankinfosecurity.com/australias-healthengine-caught-indata-sharing-fiasco-a-11134
• Anne Gulland, “Is there any place for counterterrorism in the NHS?” BMJ 2017; 357:
j1998.
• Kieran Allen et al, “A Thousand Words in the Palm of Your Hand: Management of
Clinical Photography on Personal Mobile Devices” Medical Journal of Australia 2016;
205(11): 499-500.
• Copyright and My Health Record, 3 April 2016:
https://myhealthrecord.gov.au/internet/mhr/publishing.nsf/Content/legislationcopyright
• Sue Dunlevy, “Your Personal Health Information is about to Go Online, But You Can
Stop It”, 3 March 2016: http://www.news.com.au/national/your-personal-healthinformation-is-about-to-go-online-but-you-can-stop-it/newsstory/d4b2c671fd2041e8b8e160b630fe310b
• Chris Foxx, “NHS Trust Fined for 56 Dean Street HIV Status Leak” BBC News, 9 May
2016: http://www.bbc.com/news/technology-36247186
• Draft health privacy guidance issued by the Australian Information Commissioner: see
http://www.oaic.gov.au/privacy/privacy-engaging-with-you/current-privacyconsultations/health-privacy-guidance/consultation-information-health-privacyguidance
• Ian Olver, “Linking Data to Improve Health Outcomes” (2014) 200 Medical Journal of
Australia 368-369.
• Margeret Otlowski, “Australian Reforms Enabling Disclosure of Genetic Information to
Genetic Relatives by Health Practitioners” (2013) 21 Journal of Law and Medicine 217.
• V Xafis, C Thomson et al, “Legal Impediments to Data Linkage” (2011) 19 Journal of Law
and Medicine 300-315.
• Teresa Pollock, Claudia Hirst, “QB v Greater Southern Area Health Service – Privacy”
(2011) Australian Health Law Bulletin, September 2011, pp 124-127.
• Graeme Suthers, Elizabeth McCusker, Samantha Wake, “Alerting Genetic Relatives to a
Risk of Serious Inherited Disease without a Patient’s Consent” (2011) 194 MJA 385-386.
• Department of Health and Ageing, Connecting Health Services with the Future:
Modernising Medicare by Providing Benefits for Online Consultations, A discussion
paper from the Australian Government, November 2010, at:
http://www.naccho.org.au/download/projectsactivities/telehealth/Telehealth%20discussion%20paper.pdf
• Enrico Coiera, “Do We Need a National Electronic Summary Care Record?” (2010) 193
Medical Journal of Australia 1-3.
• Primary Health Care Ltd v Commissioner of Taxation [2010] FCA 419 (4 May 2010)
(copyright in medical records).
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•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
NK v Northern Sydney Central Coast Area Health Service [2010] NSWADT 258
Sandeep S. Mangalmurti, Lindsey Murtagh, Michelle Mello, “Medical Malpractice
Liability in the Age of Electronic Medical Records” (2010) 363 New England Journal of
Medicine 2060-2067.
Griffin Edwards, “Database of State Tarasoff Laws”, at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1551505
Margaret Otlowski, “Disclosure of Genetic Information to At-Risk Relatives: Recent
Amendments to the Privacy Act 1988 (Cth) (2007) 187 Medical Journal of Australia 398.
Ben Matthews, Kerryann Walsh, Jennifer Fraser, “Mandatory Reporting by Nurses of
Child Abuse and Neglect” (2006) 13 Journal of Law and Medicine 505.
Julian Sheather, “Confidentiality and Sharing Health Information” (2009) 338 British
Medical Journal 1458.
Lena Sanci et al., “Confidential Health Care for Adolescents: Reconciling Clinical
Evidence with Family Values” (2005) 183 Medical Journal of Australia 410-414.
Moira Paterson & Livia Iacovino, “Health Privacy: the Draft Australian National Health
Privacy Code and the Shared Longitudinal Electronic Health Record” (2004) 33 Health
Information Management Journal 5.
Roger Magnusson, “Data Linkage, Health Research and Privacy: Regulating Data Flows
in Australia’s Health Information System” (2002) 24 Sydney Law Review 5, 38-51.
Roger Magnusson, “Promoting Sexual Health: the Role of Law”, in Meredith TempleSmith and Sandy Gifford (eds), Sexual Health: An Australian Perspective, Melbourne: IP
Communications, 2005, pp 286-316 (considers confidentiality and privacy issues with a
focus on HIV and STI information).
Sharon L. Keeling, “Duty to Warn of Genetic Harm in Breach of Patient Confidentiality”
(2004 12 Journal of Law and Medicine 235-253.
NSW Health, Privacy Manual (Version 2), June, 2005, available at:
http://www.health.nsw.gov.au/policies/pd/2005/pdf/PD2005_593.pdf
NHMRC, The Regulation of Health Information Privacy in Australia: A description and
comment (January 2004, prepared by Professor Colin Thomson), available at:
http://www.nhmrc.gov.au/_files_nhmrc/publications/attachments/nh53.pdf
Kadian v Richards [2004] NSWSC 382 (confidentiality in litigation).
Victoria-Anne Davidson, “Collection and Disclosure of Personal Information within a
Multi-Disciplinary Health Team” (2005) 13(6) Australian Health Law Bulletin 70.
K. Offit, E. Groeger, S Turner et al., “The ‘Duty to Warn’ a Patient’s Family Members
About Hereditary Disease” (2004) 292 Journal of the American Medical Association
1469-1473.
D Mendelson, “Travels of a Medical Record and the Myth of Privacy” (2003) 11 Journal
of Law and Medicine 136.
Bernadette McSherry, “Consenting to Shared Electronic Health Records: the Proposed
HealthConnect System” (2004) 11 Journal of Law and Medicine 269.
Bernadette McSherry, “Confidentiality and the Duty to Warn” (2000) 7 Journal of Law
and Medicine 239.
Roger Magnusson, “Privacy, Confidentiality and HIV/AIDS Health Care” (1994) 18
Australian Journal of Public Health 51-58 (reporting on an empirical study of privacy of
HIV information).
Ea Mulligan, “Confidentiality in Health Records: Evidence of Current Performance from
a Population Survey in South Australia” (2001) 174 Medical Journal of Australia 637.
A. Braunack-Mayer & Ea Mulligan, “Sharing Patient Information Between Professionals:
Confidentiality and Ethics” (2003) 178 Medical Journal of Australia 277
Access to Medical Information
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•
•
•
•
•
Day Procedure Centres Regulation 1996 (NSW), sch 1, ss 23-25
Nursing Homes Regulation 1996 (NSW), sch 1, ss 49-51.
Mary LM Gilhooly & Sarah M McGhee, “Medical Records: Practicalities and Principles of
Patient Possession” (1991) 17 Journal of Medical Ethics 138-143.
Patrick Parkinson, “Fiduciary Law and Access to Medical Records: Breen v Williams”
(1995) 17 Sydney Law Review 433-445.
Roger Magnusson and Hayden Opie, “Patient Access to Medical Records: Fiduciary
Duties and Other Issues – A Classroom Interactive” (1998) 17 University of Tasmania
Law Review 99.
[end of unit]
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