Minter Ellison Health News
16 September 2009
Caselaw
Queensland
Medical Board of Queensland v Broadbent
The registrant, Dr Broadbent, argued before the Queensland Health Practitioners
Tribunal ('the Tribunal') that the continued pursuit of disciplinary proceedings by the
Medical Board of Queensland ('the Board') was unnecessary, an abuse of process and
contrary to the purposes of section 123 of the Health Practitioners (Professional
Standards) Act 1999 (Qld) ('the Act'), namely the protection of the public, upholding
standards of practice in the health professions and maintaining public confidence in the
health professions.
It was submitted that Dr Broadbent had agreed to provide an undertaking not to seek
registration as a medical practitioner in Queensland or any other jurisdiction in Australia.
Further, Dr Broadbent had limited financial resources and had officially retired from
practise and the surgical procedure that was the subject of the disciplinary proceedings
had ceased to be conducted in Queensland as a primary procedure.
Dr Broadbent's application was dismissed. It was held that more was involved in the
charges brought by the Board against Dr Broadbent than the particular surgery
undertaken. In particular, broader concerns about standards of practice and patient
care and management were apparent. It was held that the objects of the Act required
those matters to be considered in a public way by evidence before the Tribunal.
Click here for decision
New Zealand
Deputy Health and Disability Commissioner Report: Hutt Valley District Health
Board
Following a complaint from an IHC advocate on behalf of the IHC, the Deputy Health
and Disability Commissioner (the Commissioner) investigated the adequacy of care
provided to a patient, Mr A, by the Hutt Valley District Health Board (the DHB).
Mr A suffered cerebral palsy and an intellectual impairment. He was treated at Hutt
Hospital’s Emergency Department (ED) for abdominal discomfort. His treatment, which
included an initial review, a surgical review, an abdominal CT scan and surgical
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procedures, spanned four days. Following his final procedure, Mr A’s condition fluctuated,
and three days later he died following respiratory distress.
The Commissioner found that the staffing of Hutt Hospital’s ED on the day Mr A
presented (a Sunday) was not adequate, and as a result Mr A waited longer to be seen
and treated than was appropriate. The nurses responsible for his care in ED did not
meet acceptable standards of care, and had failed to take regular observations and to
respond to his requests for pain relief.
The Commissioner was left with the impression that Mr A was not accorded the basic
dignity and respect that is the right of every patient, and that staff did not respond
appropriately to concerns raised by Mr A’s caregivers that he was in pain, was vomiting,
and needed his regular medication. Accordingly, the Commissioner concluded that the
DHB breached Rights 1(1) and 4(3) of the Code of Health and Disability Consumers’
Rights in its treatment of Mr A.
Click here for full report
Deputy Health and Disability Commissioner Report: Mr Damian Peters
The Deputy Health and Disability Commissioner (the Commissioner) investigated the
services provided to a patient, Ms A, by Mr Peters, a counsellor.
Mr Peters provided Ms A with counselling and Neuro Linguistic Programming (NLP)
services between August 2004 and August 2006. The complaint received by the
Commissioner indicated that Mr Peters developed an inappropriate relationship with Ms
A during these sessions, eventually leading to sexual intercourse with her in August
2005. Between August 2005 and August 2006, it was alleged that Mr Peters continued
to provide counselling and NLP services to Ms A while maintaining a sexual relationship
with her.
The Commissioner emphasised the vulnerable position of Ms A, particularly as she was
seeking counselling for anxiety relating to past sexual, physical and verbal abuse. The
Commissioner found that Mr Peters had exploited this vulnerability to achieve his own
sexual gratification, and this amounted to a serious breach of the professional and
ethical obligations Mr Peters had as a counsellor.
Mr Peters was found to have committed an “abhorrent abuse of a position of trust” and
a breach of Right 2 of the Code of Health and Disability Services Consumers’ Rights (the
Code). He had also failed to comply with ethical standards by entering into a concurrent
sexual and therapeutic relationship with Ms A, and accordingly had breached Right 4(2)
of the Code.
The Commissioner concluded that Mr Peters’ conduct was a severe departure from
acceptable standards and a flagrant breach of the Code, and that his ongoing practice
as a healthcare provider represented a serious risk to the New Zealand public. The
Commissioner referred her findings to the Director of Proceedings, however a claim
before the Human Rights Review Tribunal was not pursued.
Click here for full report
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Legislation
Commonwealth
Australian National Preventive Health Agency Bill 2009 (Cth)
The Australian National Preventive Health Agency Bill 2009 (Cth) was introduced into
the House of Representatives and received its Second Reading Speech on 10 September
2009. According to the Explanatory Memorandum, the purpose of the Bill is to establish
the Australian National Preventive Health Agency ("ANPHA") to support the Health
Ministers' Conference and COAG in addressing the challenges associated with chronic
disease prevention. Specifically, the Bill would: (a) establish the ANPHA as a statutory
agency, to consist of the CEO and its staff, for the purpose of assisting the CEO in the
performance of his or her functions; (b) provide for ANPHA's finance and reporting
requirements, including that it is a prescribed agency for the purposes of the Financial
Management and Accountability Act 1997 No. 154 (Cth) and therefore subject to its
operation; (c) set out the terms and conditions of the CEO's appointment and prescribe
associated powers and functions in relation to preventive health matters, which include
the provision on advice and recommendations to the Minister or State and Territory
Governments, to collect, analyse, interpret and disseminate information, to promulgate
national standards and codes, and to publish a biennial report; (d) require the CEO to
prepare a strategic plan, which defines the CEO's principal objectives and gives a broad
outline of the strategies to be pursued in order to achieve those objectives, as well as
annual operational plans, which set out actions to be taken and performance indicators;
and (e) provide for the engagement of ANPHA staff and consultants.
The Bill also proposes the establishment of the Australian National Preventive Health
Agency Advisory Council ("the Advisory Council") for the purpose of advising the CEO on
preventive health matters.
Click here for legislation
Click here for Explanatory Memorandum
Health Insurance Amendment Regulations 2009 (No. 2) 2009 No. 225 (Cth)
The Health Insurance Amendment Regulations 2009 (No. 2) 2009 No. 225 (Cth) amend
the Health Insurance Regulations 1975 No. 80 (Cth). The amending Regulations insert
new ss. 20CA (Method for determining substantial difference from market value) and
20CB (Method for determining market value) in relation to property, goods or services.
The amending Regulations commenced on 11 September 2009.
Click here for legislation
Therapeutic Goods Amendment Regulations 2009 (No. 5) 2009 No. 228 (Cth)
The Therapeutic Goods Amendment Regulations 2009 (No. 5) 2009 No. 228 (Cth)
amend the Therapeutic Goods Regulations 1990 No. 394 (Cth). The amending
Regulations insert a new Part 7A (Infringement notices) to administer and implement
the infringement notices scheme established under ss. 42YJ and 42YK of the
Therapeutic Goods Act 1989 1990 No. 21 (Cth), which enables a person who is alleged
to have committed an offence or contravened a civil penalty provision to pay the
Commonwealth a specified penalty as an alternative to prosecution or civil penalty
proceedings. Specifically, the amending Regulations insert a new Sch. 15 and set out
requirements in relation to: (a) the issuing and withdrawal of infringement notices; (b)
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the required content of infringement notices, such as brief details of the alleged offence
or contravention, the amount of the penalty and the maximum penalty that a court
could impose in respect of the offence or contravention; (c) service of infringement
notices; (d) payment options and extensions of time to pay infringement notices; (e)
the effect of payment of an infringement notice, which includes the discharge of a
person's liability for the alleged offence or contravention; and (f) the non-compulsory
status of infringement notices, in that the payment of such a penalty is an alternative to
litigation or prosecution. The amending Regulations commenced on 11 September 2009.
Click here for legislation
Health Insurance (Pathology Services Table) Amendment Regulations (No.3)
2009 No. 227 (Cth)
The Health Insurance (Pathology Services Table) Amendment Regulations 2009 (No. 3)
2009 No. 227 (Cth) amend the Health Insurance (Pathology Services Table) Regulations
2008 No. 212 (Cth). According to the Explanatory Statement, the amending Regulations
makes item 66900 of the pathology services table exempt from the coning rule, "the
restriction for which Medicare benefits are paid for pathology services within a single
patient episode", by adding it to r. 18A. Item 66900 was introduced on 1 May 2009 as a
direct mirror of item 12533 on the General Medical Services Table, which "provides a
rebate for a carbon-labelled urea breath test for Helicobacter pylori", in order to resolve
a Medicare Australia billing issue for pathologists trying to claim this test. The amending
Regulations seek to exempt the mirror from the episode cone rule because item 12533
is also not included in the rule. The amending Regulations are taken to have
commenced on 1 May 2009.
Click here for legislation
Health Insurance (Diagnostic Imaging Services Table) Amendment Regulations
2009 (No. 3) 2009 No. 226 (Cth)
The Health Insurance (Diagnostic Imaging Services Table) Amendment Regulations
2009 (No. 3) 2009 No. 226 (Cth) amend the Health Insurance (Diagnostic Imaging
Services Table) Regulations 2008 No. 210 (Cth) According to the Explanatory
Memorandum, the amending Regulations: (a) enable Medicare benefits to be payable
for Magnetic Resonance Imaging ("MRI") services conducted using specified equipment
located at Benson Radiology, Morphett Vale, South Australia; (b) insert details of the
above MRI equipment into Sch. 1 (Table of diagnostic imaging services), Part 2, Table 3
(Eligible equipment - paragraph 36 (1)(f)); and (c) substitute the description of the
"manufacturer and scanner model" of the specified equipment located at Suite 1, 38-40
Urunga Parade, Miranda, NSW due to its replacement by a new model (General Electric
HDx) of the same strength. The amending Regulations commenced on 14 September
2009.
Click here for legislation
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News
Aged Care
Retirement village investors lose big taxation case
More than 100 high-profile business people and companies who invested in retirement
villages have lost a major dispute with the ATO and millions of dollars in tax deductions
after the High Court refused to hear further legal argument on the matter.
Click here for story
E-Health
E-health submissions to be made public
Public submissions on a plan to adopt Medicare-based numbers as healthcare identifiers
will be published by the Federal Health Department.
Click here for story
General Health
Cochlear bolsters pipeline with technology acquisition
Cochlear Limited has bolstered its early-stage pipeline, announcing it has signed an
exclusive licence with US-based medical device developer Otologics to access
technology which will take it closer to producing a fully implantable cochlear device.
Click here for story
Click here for Media Release
Health Insurance
Roxon won't give up on rebate reform
Following the release of a Senate Committee inquiry report on the Fairer Private Health
Insurance Incentives Bill 2009 (Cth) and two related Bills, the Fairer Private Health
Insurance Incentives (Medicare Levy Surcharge - Fringe Benefits) Bill 2009 (Cth) and
the Fairer Private Health Insurance Incentives (Medicare Levy Surcharge) Bill 2009
(Cth), a majority of the Senate has refused to pass the legislation, thus blocking the
Federal Government's attempt to means test the private health insurance rebate and to
increase the Medicare levy surcharge.
Click here for story
Click here for Senate Committee Report
Hospitals
Roxon dismisses revelations about public healthcare lure
Nicola Roxon has reaffirmed the Federal Government's commitment to free healthcare,
dismissing revelations that public hospitals are paying the insurance excess of privately
covered patients to lure them into the public system.
Click here for story
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Hospitals chase private cash as patients urged to use insurance
In a move that has reportedly outraged private hospitals and health funds, State-run
hospitals are reportedly seeking to recover from private health insurance treatment
provided to patients holding private insurance in the public system.
Click here for story
Alarming wait for urgent operations
Waiting lists for urgent operations such as heart bypasses and cancer surgery have
blown out dramatically this financial year, with the number of operations performed
statewide falling by 5,260 to 32,913 in July compared to the same month last year - a
14 per cent slump.
Click here for story
Pathology
Primary Health Care refinances $1.2bn debt
Primary Health Care Limited has moved to refinance its $1.2 billion debt facility. The
company announced it had signed a refinancing mandate letter and term sheet with
NAB on its debt, which will mature on February 13, 2010.
Click here for story
Click here for ASX announcement
Pharmaceuticals
Sigma posts 5% first half profit growth
Sigma Pharmaceuticals Limited has posted a five per cent rise in first-half net profit and
maintained guidance of "modest" net profit growth for the full year.
Click here for story
Click here for Sigma announcement
Click here for research report
Click here for analyst presentation
Click here for 2009 Sigma Half-Year Report
CSL says swine flu vaccine protects with one dose
CSL Limited said a single dose of its H1N1 swine flu vaccine would protect adults against
the virus, a finding that means vaccine supplies can be stretched further than officials
had estimated.
Click here for story
ChemGenex drug approval could be six months away
ChemGenex Pharmaceuticals Limited has become the second Australian biotech
company to submit a new drug application to the US Food and Drug Administration this
year, after lodging more than 500,000 pages of documentation on its chronic myeloid
leukaemia drug OMAPRO.
Click here for story
Click here for ChemGenex corporate presentation
Click here for ChemGenex announcement
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Preventative Health
Stem cells believed to repair damaged hearts
Doctors believe they have achieved a breakthrough in trials to use stem cells as a
treatment for the repair of damaged hearts.
Click here for story
Government sets up preventative health agency
The Federal Government is establishing a new preventative health agency to combat
obesity, smoking and lifestyle diseases. The agency will oversee public health
campaigns and research and provide policy advice on preventable illnesses like diabetes,
heart disease and some cancers.
Click here for story
New Zealand
Pandemic Influenza (H1N1) 09 Swine Flu - Update 148
The experience of New Zealand hospitals and intensive care units (ICUs) is reflected in
an update on the impact of pandemic influenza released by the World Health
Organization. New Zealand ICUs have reported that between 12 - 15% of patients
admitted to hospital with pandemic influenza require treatment in an intensive care unit
and this is similar to the rates experienced in other countries.
Click here for full Ministry of Health update
Money for poor cuts load on Labtests
A primary health organisation is paying GP clinics to take patients' blood samples in a
move aimed at easing the pressure on Labtests.
Click here for story
Further Information
Brisbane
Shane Evans
T +61 (0)7 3119 6450
Sydney
Lynne Peach
T +61 (0)2 9921 4800
Canberra
Paul McGinness
T +61 (0)2 6225 3257
Melbourne
Jacinda de Witts
T +61 (0)3 8608 2276
Adelaide
Chris Sweet
T +61 (0)8 8233 5406
Perth
Deborah Templeman
T +61 (0)8 9429 7510
New Zealand
Paul Radich
T +64 (0)4 498 5019
To email Australian lawyers use firstname.lastname@minterellison.com
To email New Zealand lawyers use firstname.lastname@minterellison.co.nz
Disclaimer
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information to particular circumstances. While every reasonable care has been taken in the preparation of this update, Minter Ellison
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