Wednesday, 17th of January, 2018

Medical Treatment and Medical Products

Medical Treatment and Health Products

Health Product Safety

Rights and Remedies

Not many people go through life these days without using ‘health’ products to cure or alleviate conditions and symptoms of ill health. Whether prescribed by a doctor or not, the benefits of these products must be weighed up against the possible risk of side effects. With some products, the ill effects experienced by users have been so great that the products have been taken off the market and public warnings issued. Unfortunately, this does not always occur in time and many people have suffered serious and sometimes permanent injury. These people have a legal right to seek compensation from the manufacturer and anyone else involved in the design, testing, production and marketing of the product.

Recovery of compensation for injury caused by faulty or unsafe health products is complex. It may also be emotionally disturbing and time consuming. Accordingly, those who feel they have suffered as a result of using health products, should not only receive early medical advice but also legal advice.

Most people harmed by health products will want monetary compensation for personal injury, and sometimes for economic losses such as lost wages and expenses. Additional remedies such as replacement and/or remedial treatment; injunction against future supply or treatment; withdrawal from use; prosecution; setting of safe standards; and adequate warnings and modification of marketing methods may also be appropriate.

Action Against the Supplier

Usually there is a contract involved in the supply of a health product. The contract, which need not be written, is between the supplier (for instance, the chemist) and the user. If a product is faulty, or not fit for the purpose for which it was sold, the contract is breached.

A breach of the terms of the contract is sufficient to bring an action. There need not be any carelessness involved unless the term alleged to be broken incorporates a test of proper care, for example, ‘that the supplier of the services and product shall exercise reasonable care’. In cases involving the sale of goods, the injured person usually relies on the protection offered by legislation such as the Sale of Goods Act 1896 (Tas), or Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Action Against the Manufacturer

Sometimes action may be taken against the manufacturer (or possibly importer) rather than, or as well as, the supplier. For example, the contract might contain a clause excluding or limiting liability, or the manufacturer may be better able to meet large claims and will be adequately insured. It may be appropriate to rely on statutory rights against the manufacturer (or importer), for example, under the Competition and Consumer Act. It will certainly be appropriate to consider suing a manufacturer who has made misleading statements in advertising the product.

Manufacturers are usually sued for breach of the warranties and protections contained in the  Competition and Consumer Act, or for negligence. The extent to which negligence, or carelessness, must be proved varies from case to case and this is a matter for the person’s solicitor. It commonly involves satisfying the court that it was more probable than not that the injury was caused by the negligence of the manufacturer. In the case of things ‘dangerous in themselves’ or inherently dangerous, such as poisons, the duty of care is strict and can become almost absolute, amounting to a guarantee of safety.

Liability may be found if the drug or device was not properly tested and evaluated, if sterilisation and safety control measures were inadequate, or if the company failed to warn of adverse reactions within a reasonable time after release of the drug. The manufacturer is also vicariously liable for the negligent acts of individual employees.

The court will consider the extent to which consumers were warned of potential hazards by information attached to the product or given verbally to the consumer. In the case of therapeutic products, much of the relevant information will be passed to the consumer by the doctor. It is unclear whether and to what extent a warning provided by the manufacturer, but not passed on to the consumer, allows the manufacturer to escape liability.
When the faulty product is not the sole cause of the damage, difficulties and complexities arise which can have an impact not only on the amount which may be recovered, but also whether the particular person or body sued has any liability at all. These difficulties may be not only legal but procedural, such as the collecting of evidence to successfully pursue the claim.

Case Study: The Copper 7 class-action

The problems of proving negligence against the manufacturer are illustrated in the Denzin v Nutrasweet case which was finally decided in February 1999. Ms Denzin and eight other plaintiffs, who in turn represented another 200 claimants, had taken an action against the manufacturer of the intra-uterine contraceptive device known as Copper 7. They claimed that because of the negligence of the manufacturer the devices had caused the claimants to suffer from pelvic inflammatory disease which in turn resulted in various complications such as ectopic pregnancy, septic abortion and impaired fertility.

The hearing of the evidence in the case took over eight months and required analysis of countless epidemiological studies and expert reports, with the plaintiffs trying to prove that the devices had caused the claimants’ injuries. The matter was complicated by the fact that, as the claimants acknowledged from the start of the case, pelvic inflammatory disease could be caused by a number of factors. The claimants’ argument was that it was enough for them to prove that the manufacturer’s negligence resulted in their being placed at greater risk of developing this disease.

The claimants failed on a number of grounds. The court held that the manufacturers had not been negligent and had not breached any duty they may have had to warn the claimants of the risks in using the devices. Further it was held that the argument mounted by the claimants’ lawyers was wrong in that it was not sufficient merely to show that the risk of suffering pelvic inflammatory disease was increased with the use of Copper 7 devices; the claimants still had to show that the use of the devices had probably resulted in that risk eventuating.

Taking an Action

Time Limits

One of the many difficulties confronting claimants in health product liability cases is the time limits within which action can be brought. It is often a long time after treatment with a health product before the injured person is aware of the true nature of the injury, or that it was caused by the product in question, and that there may be a cause of action and remedy available. If action is not taken promptly, the claim might be statute barred and lost. Time limits on the right to bring an action are created by legislation and delay can affect the right to certain remedies such as injunctions.

The date the action first arose is often difficult to determine accurately, and can differ depending upon whether it is being taken:

  • in tort, such as personal injury;
  • for breach of contract; or
  • for breach of statutory duty.

With the Limitation Act 1974 (Tas), for personal injury, it is the date on which the action is discoverable that marks the start of the clock. This means that it is when the person was able to identify that there was a problem, and a potential action. For example, if a person became aware of fertility problems arising from a product only 10 years after using the product, when consulting a doctor, then it is from the date of that meeting that time begins to run. In contract, the cause of action arises when the term of the contract has been breached. The time limit can be extended in certain circumstances, for example, if fraud is involved (Limitation Act, s.32) or where the claimant is under a disability (Limitation Act, s.26). However, marking the date on which an action became discoverable can be difficult.

Other legislation has limitation periods applicable to actions brought under them. Whenever reference is made to any legislation in determining a claimant’s rights, care should be taken to search for a limitation section in that statute. An example is the three year limitation period under the Competition and Consumer Act for manufacturer's liability (s87F).

Getting Help

A person injured will need a solicitor, and it is wise to find one who is proficient in the area of product liability law. You can contact the Legal Aid Commission, the Law Society or a community legal centre for useful advice about suitable solicitors. Remember that taking this type of legal action may cost a great deal of money.

Alternatively, you may be able to take legal action against the company in another country such as the United States, whose contingency fee system allows for people with low incomes to initiate proceedings at no initial cost to themselves. However, initiating an action in another country also has its complications.

If deciding to sue overseas, it will probably be necessary to find a lawyer in that country with suitable expertise or familiarity with this product to act on the person’s behalf. An Australian solicitor may be retained as an agent of the overseas lawyer. If litigation has already been commenced in another country, there will probably be considerable information worth obtaining through lawyers or other sources. It may also be the case that there are a number of persons injured by the same product. If so, the cost of research could be borne equally between plaintiffs who could also be joined together for the purposes of the legal proceedings. There are now law firms in mainland capital cities which specialise in these sorts of large-scale international product-liability class actions. The Legal Aid Commission or the larger Tasmanian law firms should be able to assist in contacting such firms.

Finally, it is important to remember that in medical cases there is always the problem of possible alternative causes of the injury. It is very important that the patient clearly recount their physical and emotional injury, collect detailed medical records, and analyse the illness before taking legal action.

Medical Treatment

Rights and the Law

Patients' Rights

Patients’ rights fall into two main areas:

  • the right to accept or refuse treatment on the basis of knowing and understanding what is involved in the treatment and any alternatives which are available; and
  • the right to care and competence on the part of the health professionals involved in treatment.

A patient who understands these rights can insist on them. Patients who feel that their rights have been infringed can take steps to protect those rights.

Criminal and Civil ​Legislation

Laws that impact on healthcare professionals include criminal and civil law. Criminal law impacts could arise in situations such as claims of assault, sexual assault, homicide, or being party to an assisted suicide. Assault is the most common of these. Abortion laws changed in the early 2000s so that medical professionals who follow the necessary procedures are protected from prosecution for abortion, although abortion as a crime continues to exist under the Tasmanian Criminal Code. The Guardianship and Administration Act 1995 (Tas) also makes clear that certain of its provisions override the Criminal Code (s37).

Civil law issues, which are now partially covered by the Civil Liability Act 2002 (Tas), where a practitioner could be sued arise in situations where registered medical practitioners have a duty to warn of a risk associated with a procedure. Failure to do so can be professional negligence. Other aspects of civil law that may arise are in circumstances such as battery or trespass, where a medical professional has undertaken a procedure without the necessary consent of the patient.

Where the health professional has any doubt or concern about a practice in the health field and its relationship with the law they should contact:

  • the relevant organisation, union or Australian Nurses Federation representative;
  • a solicitor practising in the relevant area of the law through the Legal Aid Commission or a community legal centre.

Other Legislation

From 1 July 2010, the Health Practitioner Regulation National Law (the National Law) came into effect in participating states and territories. In Tasmania, this act is the Health Practitioners Regulation National Law (Tasmania) Act 2010. Other relevant legislation in Tasmania includes the Health Complaints Act 1995 (Tas), and the Health Practitioners Tribunal Act 2010 (Tas).

A complaints framework is in place, through these Acts, so that if a person feels that their complaint has not been adequately addressed by a health care provider, they have other sources through which to deal with an issue within the health care system.

Consent

With some exceptions, any intrusion on the body of another person is an assault (or trespass) unless that person has consented to the intrusion. If physical or emotional harm results from the assault, the victim may sue for damages, otherwise known as compensation. This is quite distinct from the right to sue for damages due to professional negligence, although in practice there may be some overlap.

Free and Informed Consent

In order to consent legally to something which is otherwise illegal, a person has to understand what they are consenting to. There are no hard and fast rules to cover every situation, and there is no specific legislation on the subject. The Civil Liability Act at section 21 has set a standard for professionals, including medical professionals that requires the medical professional to disclose:

  • information that a reasonable person in the patient’s position would require to make a reasonably informed decision as to whether to undergo the treatment; and
  • information that the medical practitioner knows or ought reasonably to know the patient wants to be given before making the decision.

Although this definition goes to medical negligence, it also helps to define consent, in that a person cannot give consent without this type of knowledge. For example, knowing that a procedure that may cure a disease in the eye could also cause blindness – this is information that both a reasonable person would want to know, and that a medical practitioner would know the patient would want to know before making a decision.

A person who is given insufficient information about a particular procedure or the risks involved, or who is given that information in a way that they don’t fully understand, cannot consent to that procedure because there is no understanding of what is being consented to.

The patient does not need to be told about ordinary risks such as infection with surgery or the accepted risks of anaesthesia. Rightly or wrongly, the courts have held that a normal person would be aware of these. The courts are also sympathetic to the desire of doctors and hospital staff not to cause undue anxiety in the patient. A degree of professional judgment can be used about the extent to which risks are stressed. However, there would have to be a good medical reason for keeping a patient ignorant of a fact which may well have influenced their decision to consent.

The other element of a valid consent which should be stressed here is that it must be freely given. A patient who consents to some procedure because they believe that the hospital will otherwise refuse admission or that no other help will be made available is not freely consenting.

Proving Consent

The hospital has to prove that consent was obtained. It will be necessary to show that consent was freely given and informed. A consent form is just one piece of relevant evidence. Unless it includes all the information about procedures, risks and alternatives, it does not prove that the patient was given all the facts. It also does not preclude the possibility that the patient withdrew consent after signing the form. When asking a patient to consent to a particular procedure, health professionals should stress that they do not want to force the patient to consent and that, if the patient refuses, they will still do what they can to help.

Who Can’t Consent?

An essential element of a valid consent is that the patient is capable of understanding the thing to which they are consenting and its consequences. This means that minors, unconscious patients, some disabled people, and certain psychiatric patients are incapable of giving their consent.

Children

In the case of children, the consent of the parent or legal guardian must usually be obtained as most children are not in a position to legally consent to medical treatment. However, given that the notion of ‘a child’, at least in theory, encompasses young persons up until the age of 18, it is necessary to have regard to the position of the ‘maturing minor’. A child’s capacity to consent to medical treatment will depend on their level of maturity and understanding. Thus, rather than relying on an arbitrary fixed age at which a child can legally give consent, these cases hold that it is necessary to assess whether the child understands the nature and implications of treatment in order to decide whether the child can legally consent to that treatment.

In practice, there is little difficulty where the child and the parent (or legal guardian) are both in agreement for the treatment to proceed. However, the scope of a child’s authority to consent to treatment, in particular that of a maturing minor, is most likely to be tested in circumstances where the young person presents without the parent or guardian, seeking contraceptive advice or treatment, or possibly an abortion. In these circumstances it is necessary for the doctor providing the treatment to carefully assess the young person’s level of understanding. The more substantial and invasive the procedure is, the greater the level of capacity and maturity required of the young person. It may be prudent, in such cases, for doctors to explore with that young person whether they are willing for a parent to be involved.

In circumstances where the child is incapable of giving consent, Part 6 of the Guardianship and Administration Act 1995 (Tas) makes it clear that the parents or guardian of the child are the persons responsible for treatment decisions for the child. The only exception is in circumstances where the child is married, in which case it is the child’s spouse who has legal authority to make medical treatment decisions for the child.

It should be noted that there are some procedures in respect of which parents (or the child's legal guardian) lack legal authority to provide a valid consent, such as non-therapeutic sterilisations and bone marrow transplants for the benefit of a relative. In these circumstances, application would need to be made to the Family Court for authorisation before such treatment can proceed. Authorisation will only be granted if the Family Court is satisfied that the proposed treatment promotes the child’s best interests.

Adults

In circumstances where an adult person is incapable of giving consent, either because of permanent disability or due to the person being unconscious, the provisions of the Guardianship and Administration Act come into play. This Act makes provision for substitute consent to be given by another adult person defined in the Act as a ‘person responsible’. The ‘person responsible’ can legally consent to all forms of medical and dental treatment except those classified as ‘special treatment’ under the Act. Special treatment is defined under the Act as including:

  • sterilisation,
  • termination of pregnancy,
  • removal of non-regenerative tissue for transplantation,
  • drugs of addiction used for more than 10 days in 30 except when used to treat cancer or to provide palliative care of a terminally ill patient,
  • aversives — mechanical, chemical or physical;
  • psychosurgery and other neurological procedures ; and
  • any other treatment classified as a special treatment.

In the case of ‘special treatment’ only the Guardianship and Administration Board can consent (s46).

The Guardianship and Administration Act defines ‘person responsible’ (s4) in relation to an adult patient as one of the following in priority order:

  • a guardian — provided the guardian has been granted power to give consent to medical or dental treatment;
  • a spouse or de facto spouse — where there is a close and continuing relationship;
  • a carer — where the carer provides or arranges for domestic services and support on a regular basis and is unpaid;
  • a close personal friend or close relative — where there is both a close personal relationship through frequent personal contact and personal interest in the person’s welfare, on an unpaid basis.

Any consent to medical or dental treatment given by a person responsible must be in their charge’s best interest. Matters which must be taken into account by the person responsible before giving consent to treatment are:

  • the wishes of the person;
  • the likely consequences if the treatment is not carried out;
  • any alternative treatments that may be available;
  • the nature and degree of any significant risks;
  • that the treatment is carried out to promote or maintain the wellbeing of the person.

Consent to medical treatment by the person responsible usually must be in writing. If the situation is urgent, consent may be given orally, however written confirmation must be given as soon as possible.

Refusal to Consent

There is nothing much a hospital or doctor can do if a fully capable adult patient refuses treatment, however unreasonable such a refusal might be. The only course open is to find out why the patient will not consent and to deal with any reasons given.

With children, the parent or guardian’s refusal to consent can be overcome by taking power out of that person’s hands. Under section 42 of the Children, Young Persons and Their Families Act 1997 the Secretary of the Department of Health and Human Services can apply for a care and protection order which may contain specific orders relating to the care and protection of the child.

Under section 21 of the Human Tissue Act 1985 a blood transfusion may be administered to a child without the consent of the parent if:

  • two medical practitioners agree the child is in danger of dying; and
  • the first medical practitioner is satisfied that the blood to be transfused is compatible with the blood of the child.

When Consent is Not Required

Consent is not required where treatment is authorised under a court order. No consent is required at common law if the treatment is of an urgent, lifesaving nature and consent cannot be obtained because the patient is unconscious, or the patient’s parent or legal guardian cannot be contacted. In such a case, the hospital would be able to use the defence of necessity if any legal action followed.

Consent is not required where treatment is authorised by legislation. This includes compulsory blood tests on traffic accident patients, persons charged with other than minor offences, and certain patients under the Mental Health Act 1996.

The Guardianship and Administration Act 1995 also sets out certain circumstances where consent is not necessary. The legislation recognises that there are some situations where a substitute consent is not possible or is not needed. There are three categories:

Trivial or minor treatment: Some minor treatment is excluded from the definition of medical and dental treatment:
• non-intrusive examinations of ears, eyes, nose and throat for diagnostic purposes;
• first aid;
• the administration of non-prescription drugs.

Where there is no person responsible: Despite the expanded definition of person responsible, there will be situations where there is no relative or carer or friend available to make a decision about medical treatment (s41). In such cases it is possible to carry out the medical or dental treatment without consent if the doctor certifies in writing in the patient’s clinical record that:
• the treatment is necessary and will most successfully promote the patient’s health and well being;
• the patient does not object to the treatment; and
• the proposed treatment does not include one of the excluded treatments (i.e special treatment).

Urgent medical or dental treatment: Substitute consent is not necessary where the treatment is urgent (s40). In addition to treatment to save life or prevent serious injury to health, including mental health, treatment that prevents the person suffering or continuing to suffer significant pain or distress may also be given without consent. However the Guardianship and Administration Board strongly recommends that caution be exercised before treatment is administered in these circumstances. If possible a consent to the proposed treatment should always be obtained from the person responsible or the Board should be contacted and the matter investigated. It may be more appropriate to appoint the Public Guardian to consent to treatment.

Medical Negligence

Health professionals, like all other occupational groups, have a duty to take reasonable care for the safety and well-being of the people they deal with. A failure to take reasonable care can, if injury results, lead to a claim of negligence. Medical negligence falls under the Civil Liability Act 2002 (Tas), where the provisions under Part 6, Division 6 outline the duties of registered medical practitioners to warn of risk, and the standard of care expected of professionals.

What is Negligence?

Negligence is not a failure to achieve perfection. Accidents and mishaps can and do occur for which no one can be blamed. Negligence is a failure to exercise the degree of care and skill which can be reasonably expected in the circumstances from someone with the particular professional’s training and experience.

In any court action for negligence the judge and/or jury will look at what happened, will hear what should have been done from expert witnesses called by both sides and will decide whether or not the particular doctor, hospital or its employees used all the care and skill which could reasonably have been expected.

Reasonableness is the key word. Thus, a junior resident doctor could not reasonably be expected to use the degree of skill which a leading specialist would apply in the same situation. However, there may sometimes be a question whether that doctor should not have consulted a specialist. In an emergency, a hospital team might reasonably be excused for not taking the same degree of care in checking a patient’s history as would have been expected had there been more time.

The Civil Liability Act allows for a standard of care to be judged according to whether peer professional opinion would judge the actions of the professional as competent and reflective of widely accepted professional practice in Australia (s22).

Accident Scenes

Health professionals are sometimes wary of volunteering assistance at the scene of an accident for fear of a negligence claim. This fear is unfounded because the same standard of reasonable care and skill applies.

The situation will excuse many things that might not otherwise be acceptable. The professional might be justified in attempting procedures which they could not ordinarily be considered competent to perform. A procedure which must be performed in haste at the scene of an accident, might reasonably be done without the same degree of care and skill which would be expected in a hospital. Once again, a court would look at all the circumstances, including the personal level of expertise and would decide what ought reasonably to have been done.

Who pays?

A person who has suffered harm as a result of the negligence of a health professional in a hospital would normally sue the hospital rather than the individual who was negligent, unless the injury was caused by the patient’s own private doctor.

Hospitals are vicariously responsible for the actions of all staff, visiting specialists and independent consultants who are part of the hospital organisation, but not for those employed by the patient themselves. This rule makes sense on public policy grounds, because it places responsibility on the body most able to ensure proper standards through the selection and training of staff, efficient organisation and supervision. It also protects patients who might otherwise find themselves suing someone who simply could not pay compensation.

This does not mean that an employee or consultant has no responsibility. They can still be sued. There is, however, little reason to do so. It remains for the hospital to take appropriate action against a staff member who has been negligent.

Difficulties in Medical Negligence Cases

In almost all cases, medical negligence will be very difficult to prove for two main reasons. The first is the difficulty in obtaining relevant evidence. An injured person must usually rely on the hospital or doctor to supply much of the evidence as to what caused the relevant injuries. They must also rely on the evidence of other doctors to prove that negligence was involved. Doctors may be reluctant to give such evidence.

The second reason is that almost all medical treatment involves some risk to the patient. The fact that someone is harmed by an operation, or other medical procedure, or received a course of treatment without any improvement does not mean that there has been negligence. It is necessary to point to some definite step, contrary to accepted medical practice, which the doctor or hospital did (or did not) take and to prove that the step would have avoided injury to the plaintiff if the doctor or hospital had followed accepted medical practice.

Apart from the difficulties in winning a medical negligence case, the question of damages is also difficult. The client in a medical negligence case is almost always suffering from a medical problem prior to the alleged negligence. It is only the medical problems which flow from the negligence which can be compensated and not, as many clients think, all of their subsequent medical problems.

One of the most important parts of a medical negligence case is to find out what really went on. All of the usual requests for medical reports should be made, including requests to the prospective defendant. However, these will often not give all of the information required, especially in relation to matters which occurred in a hospital.

In response to a request for a report, most hospitals will only supply a copy of the discharge summary, although the hospital will have many more documents which may be vital in the case. For example, nurses’ records relating to an operation are often informative and important documents, setting out what happened during the operation. Similarly, the cards and notes of a doctor are often more important than formal reports.

Accordingly, in almost all medical negligence cases, it is important to have access to all these documents. A solicitor experienced in the area of medical negligence law will know what documents to ask for and how to get them through the court process called ‘discovery’, which is a means of obtaining documents from the other party to a civil case.

The difficulty with this process is that it involves the expense of retaining a solicitor to take court action when ultimately that expense, when access to the relevant documents has been obtained, may not be justified because these show no negligence.

Independent Medical Reports

Almost no medical negligence case can be won without good medical evidence from an independent specialist doctor, but it can be difficult to find a specialist doctor who is prepared to become involved in such a case. Australian doctors generally do not like becoming involved in cases against their fellow doctors.

One useful technique is to ask for the name of another specialist from any specialist who refuses to see the person. This may lead to a specialist who is known by their colleagues to be willing to become involved in a medical negligence case. Another technique is to approach the medical faculties of Universities. Full or part-time academic doctors are more often willing to become involved in such cases than their full-time practising peers.

A third and more expensive alternative, which is usually a last resort, is to use overseas doctors from the United Kingdom, the United States or Canada.

Advice to Solicitors

In taking instructions, all of the above problems should be pointed out and discussed with the client. Because of the difficulty in finding out what went on, especially in relation to operations or other hospital treatment, a very comprehensive statement should be taken from the client at an early stage. While the client will usually not know the medical details of what went on, this statement may be important in assisting independent specialists in forming a view on whether there has been medical negligence.

Abortion/Termination of Pregnancy

Terminating a pregnancy through medical channels is not a crime, although there is still a stigma attached to terminating a pregnancy. Amendments to the Criminal Code have seen a pro-choice alignment in the legislature, which validates women’s rights, and the right to choose. Control of child birth and fertility is a major issue in women’s rights, and since 2001 Tasmania has had pro-choice legislation.

If you are considering an abortion, and are conflicted about the issue, there are numerous resources available online. Your GP can also provide advice, and referral to counselling services. You can also contact Family Planning Tasmania. This is a government funded service, it provides unbiased information on all aspects of decision making around pregnancy. See the booklets available from Family Planning Tasmania. Contact details are also available on this website.

On the 24 December 2001, the Criminal Code Amendment Act (No. 2) of 2001 received the royal assent. That Act protected from prosecution any doctor who performed an abortion before the passage of the Act.

Recent amendments under the Reproductive Health (Access to Terminations) Bill 2013 has altered the law significantly, reflecting a progressive agenda. As of November 2013, abortion was decriminalised entirely, and removed from the Criminal Code. The Reproductive Health (Access to Terminations) Act 2013 at section 4 stipulates that 'the pregnancy of a woman who is not more than 16 weeks pregnant may be terminated by a medical practitioner with the woman's consent.'

If the pregnancy has progressed beyond the 16 week point, the termination can only take place, with the woman's consent if two criteria are met. These are that the medical practitioner:

(a) reasonably believes that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated; and

(b) has consulted with another medical practitioner who reasonably believes that the continuation of the pregnancy would involve greater risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated.

These requirements previously applied to all terminations, and now only apply past the 16 week point of gestation.

Other Aspects of the Act

The Act has placed obligations on medical practitioners who are conscientious objectors to termination. There is no obligation on a medical practitioner to perform a termination where they have a conscientious objection, except in the case of a medical emergency threatening serious physical harm to or the life of the pregnant woman (s6). If a woman seeks advice on the full range of options open to her regarding the outcome of her pregnancy, and the consulted medical practitioner or counsellor has a conscientious objection to providing advice on termination, there is a requirement that they refer the pregnant woman to a full list of prescribed health services where she may receive such information (s7).

Access to Information and Confidentiality

Access to Information

The patient has no real legal right of access to medical information. The records belong to the institution or individual that created them, and access to them is dependent on the policy of the owner. The Tasmanian Department of Health and Human Services does, as a matter of policy, support the rights of patients to see what information is held about them by a health authority.

Within hospitals and community health centres, initial requests are directed to the doctor involved with the patient. That doctor may grant access to the records or refuse access on the ground that it may be harmful to the patient’s physical or mental condition. Requests should preferably be in writing, giving as many details as possible to help identify the records.

In the case of court actions, the court can order that medical records be produced. However, the patient is likely to need the records much earlier than this so that lawyers can decide whether or not legal action would have any chance of success. An uncooperative individual or institution can make life very difficult for a patient who wants to take action over harm suffered while in their care.

Public hospitals usually charge for search and release of medical records. Doctors may charge up to $100 or more depending on the length of the report, photocopying, and the trouble taken. Pensioners may be able to get a waiver of this fee.

Confidentiality

While patients have some legal right to expect that information held by a hospital or doctor will not be disclosed to others without their consent, that right is difficult to enforce.

The widest protection for the patient, at least as far as information held by doctors is concerned, comes from the rules contained in the Code of Ethics published by the Australian Medical Association. These rules are not laws. If a patient suffers as a result of breach of the code, it may be evidence of negligence. The patient cannot, however, sue for breach of confidence purely on the ground that an ethical rule has been broken. See: http://ama.com.au/codeofethics for a copy of the Code of Ethics.

In order to sue a hospital or doctor because of a breach of confidence, the patient must have suffered some harm as a result of the breach. Harm in this sense might be, for example, the loss of a job because the employer found out about a medical condition. Hurt feelings or pride do not usually give rise to legal rights. If loss has been suffered, the patient may, according to the circumstances, sue on the grounds of breach of contract, negligence and possible breach of an equitable duty of confidence.

Where a patient is paying for health services, a contract exists between the patient and care provider. A basic term of that contract (implied, even though it is rarely expressed) is that the patient’s secrets will not be disclosed without their consent.

The patient’s consent may, of course, be implied in some situations. For example, information given to allied health professionals or other hospital staff who ‘need to know’, would have the patient’s implied consent.

In other situations, information is given because it is required by law. A doctor or hospital could not be sued for breach of contract if records are subpoenaed, or if there is a legal obligation to notify some authority. For example, doctors must notify the Health Department if their patients have certain infectious diseases. They are also under a duty to report cases of known or suspected child abuse. It may be that a patient’s consent would be implied in the case of information given to relatives, but not if the patient has expressly said they don’t want relatives to know. Relatives, even ‘next-of-kin’, have no right to demand information about the patient, unless they are the parent of a child patient, or a patient’s legal guardian. This restriction extends to wives or husbands who may be denied access to ‘sensitive’ information.

In the case of children and certain mentally ill or intellectually disabled patients, the contract is between the doctor or hospital and the person who arranged the treatment. It is therefore that person’s consent which is needed for any disclosure.

An equitable duty of confidentiality may exist in cases where there is no contract (patients in public hospitals probably do not have a contract). All doctors and allied health professionals with access to information about the patient are probably subject to this duty. There are no cases directly on the point, and the law is not clear in this area. A patient would probably be able to obtain an injunction to prevent disclosure of such information except to hospital staff who ‘need to know’.

Negligence is a possible cause of action for breach of confidentiality. A patient who had suffered some harm could claim negligence if it could be proved that the risk of harm ought to have been foreseen by the person who, having a duty of care toward the patient, made the disclosure. It is in such a situation that the Code of Ethics would prove useful in demonstrating lack of due care.

All of these actions are expensive, time consuming and without any real guarantee of success for the patient concerned. They provide inadequate protection for the patient who has suffered, or could suffer, real loss as a result of disclosure of information and they provide no protection for those who merely want to retain their privacy.

Most health professionals are quite ethical when it comes to confidentiality. However, those cases where abuses do occur tend to have such severe consequences for the patient that there is a good argument for new laws to regulate information practices.

Complaints Processes

The First Step: The Treating Agency

A consumer’s first point of contact in attempting to resolve a complaint should always be with the authority which provides the service concerned. This applies to both public and private health care providers.

In public hospitals, complaints are handled by the hospital administrators, for example, the Chief Executive Officer, the Medical Superintendent (where applicable) and the Director of Nursing. These officers may also receive assistance from committees of the relevant hospital board (for example, the ‘Patient Care Review Committee’). However, committees do not, as a rule, investigate individual complaints, especially where the complaint involves a matter of professional judgment or the treatment of individual patients by individual clinicians. Committees are usually more concerned with coordinating general policies regarding the quality of hospital services and so on.

In Community Health Centres the mechanisms for handling patient complaints are not as well developed. In some instances, the Coordinator of the Centre may be able to resolve the matter. In other instances the Department of Health and Human Services will become involved in resolving the complaint.

Medicare and DHHS

Department of Health & Human Services

If initial contact with the public health service has left a consumer with an unresolved complaint, the complaint may be referred to the Department of Health and Human Services for investigation. It should be directed to the attention of the Director General of Health Services. Such a complaint may lead to the involvement of the Medical Council of Tasmania, which governs the conduct of registered medical practitioners within Tasmania.

Alternatively, a complainant can take court action but should seek legal advice and guidance.

Medicare Complaints

Medicare is administered by the Commonwealth government under the Health Insurances Act. Complaints against Medicare and related matters, including medical services refunds, should be directed to Medicare.

Aged Care

Aged care, like most health care, falls into the two categories of private and public practice. Complaints about aged care should first be directed to the service provider, and failing resolution by this means, complaints about public health aged care can be directed to the relevant public department. At the moment, this is the federal Department of Health. Under the new Liberal government, responsibility for Ageing is moving to the new Department of Social Services.

The current Aged Care Complaints Scheme has a hotline: 1800 550 552, contactable between the hours of 8:30am and 5:00pm weekdays and 10:00am and 5:00pm weekends and public holidays. The Aged Care Complaints Scheme website also provides helpful information.

Complaints about private providers of aged care services can be directed to the Office of the Health Complaints Commissioner (OHCC) if the complaint concerns a Tasmania-located provider. For information on the complaints procedure through the OHCC, see below.

Non-Medical Cosmetic Procedures

Cosmetic procedures, such as laser surgery and beautician work can be referred to the Office of the Health Complaints Commissioner (OHCC) or to the Department of Health (DHHS). Laser surgery falls under the authority of the Board of Medical Radiation Practitioners, and can be referred to both the OHCC and AHPRA, depending on the nature of the complaint (see below). Issues with the provision of waxing treatment or similar treatments can be referred to your local Council. Waxing and similar treatments are licensed with the local Council. 

The Tasmanian Health Complaints Commissioner

What is the Office of the Tasmanian Health Complaints Commissioner (OHCC)?

Functions

A major function of the Office of the Health Complaints Commissioner (OHCC) is to receive, assess and resolve complaints about health services in Tasmania. A second function is to identify and review issues which arise out of health complaints and to suggest ways of improving health services and of improving and increasing health rights. Examples of the two are billing, as complaints about health services, and endemic issues, such as poor management structure or procedural guidelines is the latter. The OHCC can provide advice to a practice or hospital about procedural or policy issues, but it cannot enforce their recommendations. Similarly, while the OHCC can investigate an issue, it cannot force conciliation or a remedy. 

The Commissioner may investigate, at his or her own instigation, any health issue of importance within a specific or general health area where this is considered to be in the public interest.

The Tasmanian Office of the Health Complaints Commissioner (OHCC) operates under the Health Complaints Act 1995. It is important to know that the Health Complaints Commissioner does not act as an advocate for the user or the provider — the Commissioner’s role is that of independent investigator.

The Health Practitioner Regulation National Law (Tasmania) Act 2010

The Health Practitioner Regulation National Law (Tasmania) Act 2010 incorporates the Health Practitioner Regulation National Law Act 2009 (Qld) into Tasmanian law. It provides for the registration and administration of a range of medical fields under one piece of legislation.

The Health Practitioners Tribunal Act 2010 provides for the Health Practitioners Tribunal to hear and decide matters arising in relation to Tasmanian professionals who are registered under one or more of the ten national registration boards.

The Tasmanian Charter of Health Rights and Responsibilities

The Charter is intended to be used as a guideline to help balance the rights and responsibilities of users and providers of health services and to strengthen the relationship between them. This is likely to benefit the health outcomes of all who use health services. An Australian Charter was endorsed by Australian Health Ministers in July 2008, which may mean that the State Charter will become irrelevant. However, the State Charter in Tasmania continues to be of relevance at present as it is far more comprehensive than the Australian Charter.

The State Charter covers:

  • active participation in health care;
  • individualised service that is free from discrimination;
  • confidentiality, privacy and security;
  • access to complaints mechanisms;
  • carers;
  • contribution of health service providers.

Electronic copies of both the Australian and Tasmanian Charters are available from the Health Complaints website.

The Complaint Process with the Health Complaints Commissioner

Health services that can be investigated include all types of health services, both public and private. Providers include public or private practitioners, nursing homes, hostels or supported accommodation houses, public or private hospitals, an alternative health care provider, or any other person or place providing a health service. The health service must have been received in Tasmania.

If a provider gives an opinion or makes a decision for the purposes of a claim under the workers compensation scheme, this cannot be investigated by the Health Complaints Commissioner.

Who can make a complaint?

A complaint can be made by anyone aged 14 years or more who uses a health service, or the parent or guardian of a child under 14. The person who used the health service about which they want to complain may authorise another person to make a complaint on their behalf. A person who has legal responsibility for the health affairs of a person may register a complaint for them. Another health service provider and certain approved or prescribed persons are also permitted to lodge a complaint.
Signed approval is needed before a complaint can be investigated or before a complaint can be made for someone else. The Commissioner may grant an exemption in special circumstances with regard to who may make a complaint and the lodging of a complaint.

Types of complaints

Amongst categories of complaints that can be investigated are:

  • the failure of a health service provider to provide a service or the provision of a service that was unnecessary;
  • denial of a person’s dignity or privacy;
  • denial of access to information about health care;
  • failure to give adequate information;
  • failure to treat a person in a professional manner; or
  • failure to exercise due skill.

If a health service provider fails to take proper action regarding a complaint made to them or if the provider acts in any way that is inconsistent with the Tasmanian Charter, this is also the basis for a complaint.

Time limits

The complaint must be made within two years of the complainant becoming aware of the circumstances that gave rise to the complaint. The Commissioner may waive this requirement if satisfied that the complainant had good reason for not making the complaint earlier.

What will it cost?

There is no charge for making a complaint to the Health Complaints Commissioner or for any assessment, investigation or conciliation. If an independent medical opinion is needed by a complainant using the conciliation process to seek compensation, it will be paid for by the complainant.

How to make a complaint

Only after an approach is made to the health service provider and the matter is not resolved can a complaint be made to the Health Complaints Commissioner. There is a complaints form on the website.

Early resolution

Sometimes a person may call or write to the Commissioner with a relatively simple issue. For example, they may have had a billing issue and had not felt able to raise it themselves with the health provider. The Commission staff may help the person to contact the health provider and the issue may be quickly resolved with no greater involvement of the Commissioner’s Office.

If the complaint is forwarded in writing, or the complaint form sent with a package is returned signed, the complaint is registered. The complaint is then sent to the provider with a request that a response be made directly to the complainant in the first instance. There is, however, provision in the legislation, in particular instances, for the Commissioner not to disclose to the health service provider any information that would identify the health service user or complainant.

The response from the provider may resolve the issue for the complainant. If there are still outstanding issues, or the complainant believes the response contains errors of fact or omission, the complainant is requested to put those matters in writing, so an officer can discuss them directly with the provider.
The initial assessment period provides the Health Complaints Commissioner with the opportunity to assess a complaint for substance. In determining whether a health service provider has acted reasonably, the Commissioner must have regard to the principles in the Charter of Health Rights and Responsibilities and to the generally accepted standard of health service delivery expected of a provider of that kind.

For those complaints not resolved with early resolution, the Commissioner has a discretion to either:

  • refer the complaint to AHPRA or a registration board where the issue is one of clinical practice standards;
  • refer the complaint to an independent conciliator for conciliation;
  • investigate the complaint him or herself; or
  • dismiss the complaint.

Conciliation

A complaint can be referred to a conciliator for statutory conciliation if agreed to by both the complainant and the provider. Conciliation is an alternative to civil litigation where claims for compensation form part of a substantive complaint. Nothing found during the conciliation can be used in any other forum, such as court. It is a closed process.

A conciliator associated with the OHCC will act as conciliator in a complaint. The role of the conciliator is to assist the complainant and provider to find a way to resolve the issue or issues which gave rise to the complaint. The conciliator does not represent either party and is there to facilitate a resolution. Once an outcome is negotiated, both parties sign a document agreeing to the outcome, at which stage the matter is finished and cannot be taken up in another forum. If an agreement is reached and signed by the parties to the conciliation, the signed agreement binds as if it were a court document.

The outcomes of a conciliation could include:

  • compensation
  • apology
  • changes to the system

Changes to the system may result where, for example, a midwife following a hospital guideline may have acted contrary to a labouring woman’s wishes. Changes to the system will usually involve a care provider following an OHCC recommendation on alteration to an existing policy or procedure manual.

Investigation

There are several situations where an investigation will take place:

  • Where a matter has not been resolved, where too little of the subject matter is known,
  • a review of medical or other records is warranted in order for sufficient information to be found about a complaint matter, or
  • where there may be a question about the conduct of a provider of a health service, an investigation would take place.

Predominantly, investigations occur where a service is provided to more than one user, or where insufficient information has been gained for a reasonable explanation to be provided to the user of the service. Investigations also occur where there are questions about the practice of an individual provider, any results of such investigations can result in an AHPRA investigation, depending on the recommendation of the OHCC.

Statutory actions under the Health Complaints Act 1995 provide the opportunity for privileged and confidential information to be obtained, with the express view of identifying the service issues which gave rise to the complaint in the first instance. In conciliation and investigation, formal opinions can be sought on the actual service provided and medical or other records can be obtained to inform that opinion.

An investigation may involve interviews with the complainant and the health service provider, a review of services provided, examination of relevant records and research into current best practice standards. There is an obligation on a health service provider to provide the health records of the complainant. Penalties can apply.

A report with recommendations based on the findings of the investigation will be made, which identifies the actions that may be possible to ensure that type of complaint will not arise again. This report can be made to the appropriate individual or body able to implement the actions.

Confidentiality

Permission is sought from the users of health care services, firstly to refer their complaint to the provider and then to gain access to their health information. Providers are assured that, whenever a matter is under investigation, the information sought and provided can be used by the Commissioner only for the purposes of the Health Complaints Act 1995. Additionally, this privilege is strengthened further in conciliation, where any information given is confidential and is not admissible in a court or tribunal. The confidentiality of this statutory action is guaranteed by the Act. Staff of the Commission, other than the conciliator involved and the Commissioner, do not become aware of the detail and outcome of conciliated cases. No identifying information is provided to any party outside the complaint during the informal processes.

During the informal stages of the complaints process, the main aim is to assist both parties to resolve the issues of concern directly with each other, thus improving communication and trust and demonstrating that not all matters require external intervention.

Registration Boards can be notified of all issues registered but no identifying information is provided unless the matter has not been resolved during a specified timeframe allowed under the Act for informal resolution and is to proceed to a statutory action, i.e. to investigation, conciliation or referral to a Registration Board.

Confidentiality of information held by the Health Complaints Commissioner is essential to ensure both users and providers of health care services have confidence and trust in the processes. The highest priority is to ensure that the confidentiality of both parties is maintained throughout the processes, whether informal or statutory. Confidentiality of information must rely on the cooperation of all people involved in the complaint.

Communication

Often the provider is unaware that the user has not understood medical information because the user simply sits and nods. Sometimes the provider has difficulties in keeping to the appointment schedule and does not take enough time to explain matters in a manner which allows the user to understand. This can occur in both public and private, mainstream or non-traditional service areas. Communication problems do not always equal negligence.

What happens later?

The OHCC has the power to perform a follow-up audit three months after the resolution of the complaint to assess whether the health care provider has complied with any undertakings.
The OHCC has no power itself to impose penalties or make changes. It is an advisory body, to a certain extent, and can provide conciliation for voluntary resolution of a conflict. If there is a significant issue with a health care provider that falls within the jurisdiction of AHPRA, AHPRA may decide to take up the investigation from the OHCC, and the matter may end in the Health Practitioners Tribunal for resolution.

Tasmanian Health Practitioners Tribunal

Complaints against practitioners registered with one the 14 National Health Practitioner Boards, if judged serious enough, will be directed to the Health Practitioners Tribunal. Their website provides details on making an application to be heard, legal representation, appeals, and how the tribunal operates.

In general, AHPRA and the OHCC may investigate a complaint or notification, but it is the particular Board under which the practitioner is registered, or seeks registration, which will act as applicant or respondent when appearing before the Tribunal.

The Tasmanian Health Practitioners Tribunal deals with very few cases each year, which hopefully reflects on the excellent character of most health care professionals.

For a complaint to go beyond the OHCC it must be a serious matter concerning the activities of a particular professional. For the complaint to then go beyond the AHPRA and to the Tribunal the matter must concern the interests of the public. The penalty that is usually being considered is one of refusal of registration, suspension or deregistration, indicating the seriousness of the facts that end up before the Tribunal.

In 2013 the Tribunal heard two cases, one involving medical mispractice, with a general practitioner engaging in an emotionally unstable 4 year sexual relationship with a patient who was known to him to have anxiety issues, stemming in part from a history of sexual abuse. The practitioner was suspended for 12 months and ordered to pay the costs of the applicant, the Tasmania Board of the Medical Board of Australia. The second case involved an application to practise psychology in Tasmania. The applicant was refused registration on the consideration of the interests and well being of the public, as a psychologist’s report had indicated that the applicant had manifested narcissistic personality disorder and thus, with the rimary purpose of protecting the public interest in mind, the Tribunal could not be satisfied that the applicant was a suitable person for registration.

Other potential results of a Tribunal case include:

  • Periods of supervised practice
  • A formal reprimand
  • Regulation of work hours
  • Counselling or professional development courses

Australian Health Practitioner Regulation Agency (AHPRA)

What AHPRA can do

The Australian Health Practitioner Regulation Agency (AHPRA) works with the various State Health Complaints Commissioners to investigate community concerns about individual, registered health practitioners. AHPRA engages in a broad range of functions. Their website lists the following:

  • Support the National Boards in their primary role of protecting the public.
  • Publishes national registers of practitioners so important information about the registration of individual health practitioners is available to the public.
  • Manages the registration and renewal processes for health practitioners and students around Australia.
  • Has offices in each state and territory where the public can make a complaint about a registered health practitioner or student.
  • On behalf of the Boards, manages investigations into the professional conduct, performance or health of registered health practitioners, except in NSW where this is undertaken by the Health Professional Councils Authority and the Health Care Complaints Commission.
  • Works with the Health Complaints Commissions in each state and territory to make sure the appropriate organisation deals with community concerns about individual, registered health practitioners.
  • Supports the Boards in the development of registration standards, and codes and guidelines.
  • Provides advice to the Ministerial Council about the administration of the National Registration and Accreditation Scheme.

Of relevance here is the complaints process. Complaints to AHPRA are called notifications. The complaints process with AHPRA focuses exclusively on complaints of a serious nature if it involves one of the 14 national board areas of practice. So, AHPRA can not deal with complaints about homeopaths as homeopathy is not one of the 14 national boards.

There is a Memorandum of Understanding between AHPRA and the Tasmanian Health Complaints Commissioner concerning the two different jurisdictions of the organisations. If the AHPRA receives a complaint that falls within the jurisdiction of the Tasmanian Health Complaints Commissioner, AHPRA must pass that complaint on as soon as practicable to the Health Complaints Commissioner.

The types of complaints that AHPRA can investigate involve one or all of the three types of concern with a health practitioner: the health of the practitioner impacting on their ability to provide care or training; the standard of their conduct and the performance of their role as a health care professional. AHPRA provides the following broad interpretation of each of these concerns:

  • health (impairment) – the person has, or may have, a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect their practice of the profession (for practitioners) or their ability to undertake clinical training (students)
  • conduct – the professional conduct of a registered health practitioner is, or may be, of a lesser standard than might reasonably be expected by the public or professional peers, or
  • performance – the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of their health profession is, or may be, below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

As AHPRA notes on their website, billing complaints should be directed to the Health Complaints Commissioner.
If you have a concern about any of the following, a notification can be made to AHPRA:

  • behaviour
  • boundary violation
  • clinical care
  • communication
  • confidentiality
  • conflict of interest
  • discrimination
  • documentation
  • health impairment
  • infection/hygiene
  • informed consent
  • medico-legal
  • National Law breach (such as breach of a registration standard, endorsement, condition or undertaking)
  • National Law offence (such as an advertising breach)
  • offence
  • offence by student
  • pharmacy/medication
  • research/training/assessment
  • response to adverse event, or
  • teamwork/supervision.

Powers of AHPRA

AHPRA can impose serious penalties on a medical student or medical professional who is found to have breached professional standards or even the law. For example, a podiatrist in Tasmania was convicted of the criminal offence of aggravated sexual assault when he made a representation to a patient that he could determine if she had back problems by inserting his finger into her rectum. The sentencing judge noted that his practising certificate had been suspended and would be cancelled upon conviction.

Every substantiated complaint does not meet with the same penalty. That will be a matter for the Health Practitioners Tribunal to decide. If AHPRA substantiates a complaint and it is then taken to the Tribunal to decide, the penalty imposed will fit the offence. Obviously it is a matter of scale. Deregistration is the most serious penalty that can be imposed. Other penalties include suspension, requirement to attend training on professional ethics, and to pay the cost of proceedings where the issue has gone to the Health Practitioners Tribunal.

Regulation of APHRA: National Health Practitioner Ombudsman

The Office of the National Health Practitioner Ombudsman (NHP Ombudsman) and Privacy Commissioner can ONLY investigate the actions of the fourteen National Medical Boards, as well as other investigatory bodies such as the Australian Health Practitioners Regulation Agency (AHPRA).

Before the NHP Ombudsman can investigate a complaint, a person has to raise the complaint or concern with the national agency they are complaining about. To make a complaint, the complaint must be addressed to the State or Territory Manager of the Australian Health Practitioner Regulation Agency. If the person wants the NHP Ombudsman to become involved, the complaint must also be addressed to the NHP Ombudsman.

The NHP Ombudsman does not have to investigate a complaint. The NHP Ombudsman will investigate a complaint if the initial look into the complaint discovers that there are grounds for the complaint, or if it is possible for the NHP Ombudsman to help. An overview of the complaints process is available online. THE NHP Ombudsman can not force any decision on the parties involved. Only recommendations are possible. Recommendations might include an apology, a reconsideration of a decision, or compensation where appropriate.
The NHP Ombudsman can only investigate national agencies within the National Scheme. These are:

  • the Australian Heath Practitioner Regulation Agency (AHPRA)

the 14 National Boards

  • Aboriginal and Torres Strait Islander Health Practice,
  • Chinese Medicine,
  • Chiropractic,
  • Dental,
  • Medical,
  • Medical Radiation Practice,
  • Nursing and Midwifery,
  • Occupational Therapy,
  • Optometry,
  • Osteopathy,
  • Pharmacy,
  • Physiotherapy,
  • Podiatry, and
  • Psychology)

and

  • AHPRA's Agency Management Committee
  • the Australian Health Workforce Advisory Council.

The Privacy Commissioner aspect of the NHP Role concerns the handling of personal information by a national body in the national scheme. The first step is to contact the Privacy Officer of the Australian National Practitioner Regulation Authority. The complaints process mirrors that of the NHP Ombudsman.

Rights and Responsibilities of Health Service Consumers

The following is a list of the rights and responsibilities of consumers of health services.

Rights to ‘Informed Consent’

The consumer of health services has the right to have a doctor or other health professional explain, in terms the consumer understands:

  • the condition, problem or disease;
  • the treatment or procedure to be followed, including details of alternative procedures, and all the risks or side-effects involved;
  • the costs of any procedure proposed, including any further costs associated with rehabilitation;
  • the health care system, including details of support services.

Other rights

The consumer of health care services also has the right to:

  • withdraw consent at any time;
  • refuse experimental or research treatment;
  • obtain a second opinion;
  • have details of a condition and treatment kept confidential by medical and hospital staff;
  • leave a hospital at any time (except in the cases of infectious diseases or certain psychiatric conditions), although if the patient leaves without hospital consent, the patient is liable for any injury or illness caused or aggravated by their action;
  • be treated with care, consideration and dignity;
  • request medical files from a doctor;
  • exercise any of these rights on behalf of a child or ward if they are the parent or guardian;
  • ask to stay with a child at all times except where separation is necessary for medical reasons; and
  • inform nursing staff if they do not want to see, or speak to, a visitor or caller.

Responsibilities

Consumers of health care services have a responsibility to:

  • know their own medical history including medications taken;
  • keep appointments or advise those concerned if they are unable to do so;
  • comply with the treatment supplied;
  • inform the doctor if they are receiving treatment from another health professional;
  • know what their private insurance will cover because private patients are responsible for doctors’ and hospital charges; and
  • conduct themselves in a manner which will not interfere with the well being or rights of other patients or staff.

Contacts and Resources

Health Complaints Commissioner

Hours: 9 am - 5 pm, Monday - Friday

Address: Ground Floor, 99 Bathurst St, Hobart 7000

Postal: GPO Box 760, Hobart 7001

Website: http://www.healthcomplaints.tas.gov.au/home

Phone: 1800 001 170

DHHS

Hours: various

Address: various

Postal: GPO Box 125, Hobart 7001

Website: http://www.dhhs.tas.gov.au

Phone: 1300 135 513

ANF - Tasmania

Hobart
182 Macquarie Street
Hobart  TAS  7000
Ph 1800 001 241 (outside Hobart area)
Ph 03 6223 6777
Fax 03 6224 0229

Launceston
76 York Street
Launceston  TAS   7250
Ph 1800 001 241
Ph 03 6334 1411
Fax 03 6334 3928

Devonport
22 King Edward Street
Ulverstone  TAS   7315
Ph 1800 001 241
Fax 03 6224 0229

Website: http://anftas.org/

Phone: 1800 001 241

AMA

Address: 

AMA Tasmania State Office
147 Davey Street
Hobart Tas 7000

Phone: 03 6223 2047

Mobile: 0409 219 368

Fax: 03 6223 6469

Email: ama@ama.tas.com.au

Website: www.amatas.com.au

Health Practitioners Tribunal

Address:

Tribunal Office
Level 4, 169 Liverpool Street
Hobart Tas 7000

Postal address: 

GPO Box 1311
Hobart Tas 7001
DX 52 Hobart

Phone: (03) 6233 4697

Fax: (03) 6234 3304

Email: hpt@justice.tas.gov.au

Website: http://www.healthpractitionerstribunal.tas.gov.au/

Medicare

Address: use http://humanservices.findnearest.com.au/ to find your nearest office

Website: http://www.humanservices.gov.au/customer/dhs/medicare

Phone: 132 468 or see: http://www.humanservices.gov.au/customer/contact-us/phone-us for more phone contact details

 

Mental Health

Overview

The Legislative Context

The Mental Health Act 2013 (Tas) is the dominant Act in Tasmania in relation to mental health and medical treatment for those with a mental illness. Related legislation includes the Guardianship and Administration Act 1995 (Tas); the Sentencing Act 1997 (Tas); and the Criminal Justice (Mental Impairment) Act 1999 (Tas).

The Mental Health Act 2013 deals with the rights of involuntary patients, and the involuntary detention of persons in approved hospitals. It also provides for review of orders causing detention or treatment, whether requested by the patient or by other interested parties.

The Guardianship and Administration Act 1995 applies to the role of guardians of persons, including persons being treated in an approved hospital. The Criminal Justice (Mental Impairment) Act 1999 sets outs the procedures for orders relating to the detention and treatment of persons found not guilty by reason of mental impairment, and the sentencing and order review options for such persons.

The Mental Health Act

Important points to know about the Mental Health Act are that:

  • The Act only deals with involuntary patients who have, or appear ot have, a mental illness;
  • It provides scope to make orders for the assessment, treatment, or detention of patients, when such patients are themselves incapable of giving informed consent to their assessment, treatment, or detention;
  • These orders are made by the Mental Health Tribunal;
  • A patient must meet all criteria before an order can be made;
  • If the patient fails to meet any of the criteria then the order cannot be made; 
  • The Tribunal must make a a mandatory review of every treatment or involuntary inpatient detention order, which is to occur within 30 days of its being made;
  • Any patient can apply for an additional review; and
  • Generally, the patient must be discharged from the order as soon as they no longer meet a criterion, i.e., once they show signs of rehabilitation and recovery

Patient Rights, Care, and Service Delivery Principles

The Mental Health Act provides protection of the rights of persons subject to such orders as it provides. These include assessment orders, treatment orders, and orders for admitting patients into Secure Mental Health Units. All involve restrictions on liberty.  The Mental Health Tribunal reviews the making of all such orders to ensure that they are necessary, and periodically reviews the situation of all patients who are on longer-term orders.

The objects of the Act are described in section 12.  They include ensuring high standards of care for people with mental illnesses, ensuring that patients are provided with appropriate information about their rights, and that patient care and treatment is to be given in the least restrictive setting. Incidental objects of the Act include reducing the adverse effects of mental illness on families, ensuring equitable and comprehensive services to those affected by mental illness, and achieving high standards of care and treatment.

In addition, Schedule 1 of the Act outlines mental health service delivery principles which recognise the tension between the need to restrain a person’s liberty to protect the public, and the need to protect their dignity and autonomy, and self-respect.  

The Chief Civil Psychiatrist, and the Chief Forensic Psychiatrist

A feature of the legislation is the establishment of the offices of Chief Civil Psychiatrist and Chief Forensic Psychiatrist.  Together, with the Mental Health Tribunal, they provide an important review and oversight role in ensuring the assessment, treatment, and care of persons with mental illness occurs according to the Act's provisions.  Their powers and functions include issuing orders and clinical guidelines to medical practitioners concerning the exercise of their clinial and non-clinical duties, and approving the form of rights statements required to be given to patients periodically, during their assessment, treatment, and care.

Types of Orders, & Custody and Escort Provisions

Types of Orders

Assessment Orders

An assessment order may be made by an approved doctor where it is believed a person has, or appears to have, a mental illness that requires, or is likely to require, treatment.  It is given where the person cannot be properly assessed with regard to their illness or with regard to the making of a treatment order except under the authority of an assessment order; and where the person does not have the capacity to make decisions about their treatment for themselves. Assessment orders last only 24 hours, unless a second approved doctor affirms it, in which case it may be extended, once, for not more than 72 hours.  It allows a person to be taken to and detained in an approved hospital for the purpose of further assessment.

Treatment Orders

Treatment orders can only be made by the Mental Health Tribunal.  They allow a doctor to give a person treatment and, if required, to detain them in a hospital or approved facility for the duration of that treatment.  The Tribunal, to make such an order, must be satisfied that the person has a mental illness; that without treatment the illness will, or is likely to, seriously harm the health or safety of that person or another; that the treatment will be appropriate and effective; and that it cannot be given adequately except under a treatment order.  The person must lack the capacity to make a decision regarding treatment for themselves.  A treatment order cannot last for more than 6 months.

Interim Treatment Orders

The Tribunal is also equipped to make interim treatment orders if satisfied that the delay in making a treatment order proper would or is likely to seriously harm the health or safety of the person or another person.  It expires after 10 days or when the Tribunal makes a treatment order, whichever is sooner.

Seclusion and Restraint

Preconditions for seclusion and restraint of persons are set out in the Act (ss 56 & 57). Instances of seclusion and restraint must not last for more than 7 hours unless authorised, and can only be authorised by a medical practitioner or an approved psychiatric nurse. Restraint and seclusion may only be used if it is deemed reasonable in the circumstances; or, in the event of an emergency, where it is necessary to prevent harm to the patient, the facility in which they are being restrained or secluded, or to others. 

Involuntary Detention in Secure Mental Health Units

The Act creates orders that allow for involuntary detention of a hospitalised patient in a Secure Mental Health Unit.  

The patient must first be examined by a qualified medical practitioner (usually a psychiatrist), and, upon referral to the Chief Civil Psychiatrist, the Chief Civil Psychiatrist must make an application for the patient's detention to Chief Forensic Psychiatrist to approve. 

A person cannot be arbitrarily detained.  The Chief Forensic Psychiatrist must be satisifed that the patient is, by reason of their mental illness, a danger to himself or herself or to others; that the danger is so serious as to merit detention in the approved hospital untenable; that the Secure Mental Health Unit is the only appropriate place for the safe detention of the patient; and that the Unit has the resources to provide approriate treatment and care.

The period of detention is determined by the Chief Civil Psychiatrist in consultation with Chief Forensic Psychiatrist.  Twenty-four hours after the Chief Forensic Psychiatrist is satisfied that the patient no longer merits detention, the Chief Civil Psychiatrist is to be informed, and a request be made to the Chief Civil Psychiatrist to arrange for the patient to be transported from detention to an approved hospital.

Involuntary patients can be given leave of absence if the treating psychiatrist approves it. The patient must be given a written statement of the terms and conditions on which the leave of absence has been approved.

Information Requirements

The Mental Health Act states that people must be given a written statement of legal rights, such as the right to clear, accurate and timely information, when an order under the Act is made.  If information is withheld from the patient, the Mental Health Tribunal must be notified, and it may review why this has occurred on its own motion.

Custody and Escort Provisions

It will occasionally be necessary to ensure a patient attends for assessment or treatment.  As such, the Act equips police with powers (Schedule 2) to ensure this occurs.  Paramount to the provision of these powersis the concern of patient and public safety.  

These involve:

  • ordinary and frisk-search powers to be used upon suspicion of the patient's carrying dangerous items or items which could be used to assist escape;
  • the power to use reasonable force against the patient if the patient resists being taken into custody or being put under escort; and
  • the power to enter premises, causing as little damge as possible, to secure the patient to meet his or her obligation under a mental health order.

The custodian or escort must produce proof of their identity if requested to do so.

A person must not be taken into protective custody if they can be properly examined and assessed against the assessment or treatment criteria without being taken into custody.  Patients are not to be taken into or held in custody or taken or held under escort by force unless:

  • persuastion or other non-forceful methods did not succeed; or
  • the authorised custodian or escort reasonably believes it would be futile or inappropriate to try alternative methods.

Importantly, patients are to be given as little discomfort, and subjected to as little delay, as the circumstances reasonably allow.  

Escorts are not to interfere unreasonably with the enjoyment of a grant of leave of absence from an approved medical facility if the patient has been granted one.

General Principles for Making an Order

Treatment Orders for Patients Lacking the Capacity to Consent

Treatment Orders

Section 40 of the Mental Health Act outlines the criteria to be met before a person may be subjected to a treatment order.  Treatment orders are made when a person lacks the consent necessary to accept treatment voluntarily.  An order may be made where:

  • the person has a mental illness; 
  • the danger a risk that without treatment the illness will, or is likely to, seriously harm the person or others; 
  • the treatment (detention) of the patient is appropriate and will be effective;
  • treatment cannot be given adequately except under such an order; and
  • the person does not have decision-making capacity.

The Tribunal must be satisfied that these criteria are met by the patient before an order can be made.

The person must have a mental illness

Section 25, which discusses the criteria to be satisfied for an order to assess the patient to be made, refers to a person who ‘appears’ to have a mental illness, whereas section 40 (the section which provides the criteria for making a treatment order, including one for detention) refers to a person who ‘has’ a mental illness. By using different terminology Parliament is obviously meaning to convey a differing level of satisfaction that a mental illness exists.

Section 40 requires the Tribunal to be satisfied that a mental illness in fact exists. A mental illness is defined in section 4. Section 4(1) states that a person is taken to have a mental illness "if he or she experiences, temporarily, repeatedly, or continually":

  • serious impairment of thought (which may include delusions); or 
  • serious impairment of mood, volition, perception, or cognition.

This broad definition is limited by section 4(2) of the Act, which clarifies that a diagnosis of mental illness may not be based solely on:

  • antisocial behaviour; or
  • intellectual or physical disability;
  • experssion (not profession) of a particular philosophy; or
  • intoxication (by reason of alcohol or drug).

The Tribunal must be satisfied that the person's behaviour could be attributed not only to personality factors, but is caused by the existence of a mental illness.

There must be a risk the mental illness will harm seriously the person or others

The Tribunal must be satisfied that there is a risk of serious harm and that the risk arises as a consequence of the mental illness.  There is no explicit definition of "harm" in the Act so it is therefore necessary to look at the definition of harm in the Concise Oxford Dictionary and in everyday language. The dictionary definition inclues "damage" or "hurt". Thus, this criteria is extremely broad and could encompass such things as:

  • a significant risk of the deterioration of a marital and/or familial relationship; or
  • a significant risk of alienation from a community of which the person previously was a member, e.g. from a church community or a professional group.

If the Tribunal finds that there is a risk of such harm it must then answer the question “is the harm a consequence of the mental illness?” The harm need not be totally attributable to the mental illness so long as it is to some degree a consequence of it.

The treatment must be appropriate and effective

It is not sufficient that the patient’s behaviour has caused considerable and justifiable annoyance, anger, fear or physical discomfort.  The patient must either engage in conduct, or represent such a burden to care for, that the treatment or detention is likely to cause it to cease.  It must not, however, be excessively burdensome or upset the balance between the restriction of liberty and the preservation of individual rights.

The treatment must be adequate

Treatment is not confined to measures taken to effect a cure. Treatment properly interpreted includes treatment designed to alleviate a patient’s condition and prevent it from becoming worse, including basic nursing care and attempts to improve living skills.

The Tribunal must be satisfied that the particular treatment proposed is available to the patient in the facility in which it is proposed to involuntarily detain them.

Decision-making capacity

Section 7 states that a person has the capacity to make a voluntary decision about his or her own assessment or treatment unless it is established, on the balance of probabilities, that the capacity is absent because of an impairment or disturbance, in the mind or brain, causing an inability to understand or retain information relevant to the decision, an inability to use or to weigh the information relevant to making an informed decision, or an inability to communicate the decision.  

Voluntariness and consent is discussed later in this Chapter.

Rights-guarantee

Section 62 outlines the rights of every involuntary patient.  As well as Schedule 1, which provides a list of mental health service delivery principles, these outline that the restrictions on the liberty of the patient and interference with the patient’s rights, dignity and self-respect must be kept to the minimum consistent with the need to protect the patient and others.

Orders for Admission to a Secure Mental Health Unit

Admission to Secure Mental Health Units

An order to move an involuntary patient to a Secure Mental Health Unit must be authorised by the Chief Forensic Psychiatrist.  Such an authorisation may only be given if:

  • the patient is already being detained in an approved hospital (such as might occur under a treatment order); and if
  • the Chief Civil Psychiatrist has formally requested it.

The Chief Forensic Psychiatrist must be satisfied that (s63):

  • the patient is, by reason of mental illness, a danger to himself or herself or to others;
  • that danger has become so serious as to make the patient's continued detention in the hospital untenable;
  • in the circumstances, the Secure Mental Health Facility is the only appropriate place where the patient can be safely detained; and
  • the Facility has the resources to give the patient approriate treatment and care.

The Chief Forensic Psychiatrist, in consultation with the Chief Civil Psychiatrist determines the period for which the detention lasts, and to give notice of it, as well as the reasons for the detention, to the patient (s64).

 

 

Voluntariness and Consent

There is a preference under the Act to provide assessment, treatment and care in the least restrictive setting consistent with clinical need and patient welfare, as well as to promote voluntary over involuntary assessment and treatment (s12). The Act defines voluntary admission as being with the person’s consent (s8), or with the consent of a parent or guardian if the person lacks the capacity to give informed consent (s9). However, the Act is largely concerned with involuntary admission.

However, if the patient meets the criteria for involuntary hospitalisation and there is no less restrictive alternative, the patient may become an involuntary patient.

Consent to Treatment

Consent — the general position

The law presumes all adult persons to be fully capable of conducting their own affairs. As a general rule, no medical service should be provided unless the patient consents to the service. This applies even though medical treatment will benefit the patient and a failure to agree to the treatment may subsequently result in damage to the patient. It is not for the health provider to decide whether or not treatment should be commenced. It is for the individual patient to consent.

Improper, inappropriate or careless medical treatment which injures the patient can leave the treating health professional open to charges of negligence even if consent to the procedure is obtained.
Procedures or treatments administered without patient consent may lead to actions in trespass or assault. It is of no importance that the treatment was either expertly given or considered necessary by the treater. It is only in circumstances of a genuine medical emergency that it is permissible to give treatment without consent.

Consent to treatment for mental illness

The law, however, recognises that persons lacking mental capacity are an exception to the general rule. A person with a mental illness may be able to consent to treatment, or they may refuse, or they may be incapable of consenting to treatment.

In circumstances where an involuntary patient is unable to consent to treatment, the Mental Health Act permits treatment subject to the treatment being authorised by the Tribunal as a consequence of a treatment order, or where the treatment is urgent (s16(2)(a)).

If a person is refusing or failing to have treatment for a mental illness or is likely to refuse or fail to have treatment for their mental illness, and their illness is amenable to treatment, and a medical practitioner has recommended the treatment, the Tribunal may hold a hearing on application and may make an order authorising the giving of medical treatment for a period specified in the order.

Informed consent

The requirements for informed consent are either set down in legislation, as they are under the Mental Health Act, or they come from the common law.

The common law requirements for informed consent are that:

  • the patient be given information which they can understand about the particular treatment or procedure;
  • the information should be specific and all the patient’s questions should be answered;
  • the consent obtained should be given voluntarily and no pressure or duress should be applied to the patient to provide consent;
  • the patient has the capacity to give informed consent.

Any treatment which is given without first meeting these four common law conditions means that the treatment is a medical assault.

Under the Mental Health Act informed consent is required before the administration of medical treatment. The standards laid down for informing a patient about these treatments provide a useful guide to determining whether consent is informed. The Act defines informed consent in section 8 as requiring that each of the following be observed:

  • the person must be given a clear explanation of the treatment which includes a candid description of the advantages and disadvantages of the treatment, including information about the common or associated side-effects;
  • the person must be advised of alternative treatments, as well as their advantages and disadvantages;
  • any questions asked by the person, including questions about techniques or procedures, must be answered candidly;
  • any other relevant or important information deemed to be so by the treating medical practitioner, or the person, must be disclosed;
  • the person must be given an opportunity to obtain independent medical or legal advice.

It is the duty of the treating team to make sure that each of these steps is followed. 

Informed consent is not necessary in the event of an emergency or where the patient cannot give consent because of unconsciousness.

For more information on consent to medical treatment and the role of guardians, contact the Guardianship and Administration Board

The Mental Health Tribunal and Powers of Review

Formation and Purpose of the Tribunal

The Mental Health Tribunal is an independent tribunal established by the Mental Health Act 2013. Its primary role is to confirm orders for, or to hear appeals against and conduct reviews of, the detention and treatment of involuntary patients.

Section 167 of the Mental Health Act provides that the Tribunal is to be constituted by one person who must be a qualified legal practitioner of not less than 5 years’ experience, at least one person who is a psychiatrist, and at least 4 other members.  The President of the Tribunal is appointed by the Govenor from amongst the persons with legal experience.

The Tribunal is funded by the Department of Justice and Industrial Relations. However, administrative responsibility for the Mental Health Act rests with the Minister for Health and Human Services.

Periodic Reviews of Tribunal Orders

Reviews of assessment orders may occur at any time under the Tribunal's own motion or upon application.

Treatment orders must be reviewed within 30 days of their taking effect, again after 90 days, and then, periodically, at intervals not exceeding 90 days.  

Reviews of orders to admit patients to Secure Mental Health Units must be reviewed after 3 days, and again at any other time under the Tribunal's own motion, or upon the application of any person with the necessary standing.  

People who can apply for a review of an order include the patient, the person responsible for the patient, or another person who has an interest in the welfare of the patient (Schedule 4, Part 2, s2).

General Powers and Duties

The Tribunal has, among others, the following powers and duties:

  • the power to make, vary, renew, and discharge treatment orders (s168(1));
  • to do all things necessary or convenient to be done to perform its functions (s 169);
  • to direct that a patient be examined or given specified health care (s194(c)(i)); 
  • to review the making of any order under the Mental Health Act in general (s179); and
  • to review involuntary patient movement or transfer within Tasmania (s190).

The Tribunal also has jurisdiction to review certain orders made under the Criminal Justice (Mental Impairment) Act 1999 (Tas) and the Sentencing Act 1997 (Tas)

Official Visitors

Official visitors are appointed members of the community who check on the treatment of people with mental illnesses at approved hospitals and secure mental health units. Official Visitors have an ‘oversight’ role — that is, they visit mental health facilities to examine the physical environment and care of people with a mental illness. Official Visitors are also able to investigate suspected breaches of the Act and complaints by consumers, and may be able to assist people to apply for a review by the Tribunal.

A panel of Official Visitors must visit hospitals at least once a month, and can require the senior approved medical practitioner to produce records relating to the admission, care and treatment of patients; arrange interviews with patients; or answer questions about the care or treatment of patients. Hospitals are required to inform the Official Visitors of any requests by patients to see them, and they can investigate complaints made by persons receiving care of treatment (s160). Official Visitors must report any suspected contraventions of the Mental Health Act o the Mental Health Tribunal, and also provide an Annual Report to the Secretary, Department of Health and Human Services. See their website for information on their important work.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.