Legal Implications of Personal Protective Equipment Use When Treating Patients for COVID-19 (SARS-CoV-2).

Front-line health care personnel, including anaesthetists, otolaryngologists, and other health professionals dealing with acute cases of coronavirus, face a high risk of infection and thus mortality. The scientific evidence establishes that to protect them, hospital protocols should require that wearing of the highest levels of personal protective equipment (PPE) be available for doctors and nurses performing aerosol-generating procedures, such as intubation, sputum induction, open suctioning of airways, bronchoscopy, etc. of COVID-19 patients. Although several international bodies have issued recommendations for a very high-level PPE to be used when these procedures are undertaken, the current PPE guidelines in Australia have tended to be more relaxed, and hospital authorities relying on them might not comply with legal obligations to their employee health care workers. Failure to provide high-level PPE in many hospitals is of concern for a large number of health care workers; this article examines the scientific literature on the topic and provides a legal perspective on hospital authorities' possible liability in negligence.

Medical Panels in Victoria, Australia and Alberta, Canada: Answering Medical Questions - Determining Matters of Fact and Law?

Medical Panels undertake assessments of injured workers under compensation legislation in both Victoria, Australia, and Alberta, Canada. However, the status afforded the medical answers provided differs markedly between the two jurisdictions. This column considers the nature and implications of these differences.

The European Union General Data Protection Regulation (EU 2016/679) and the Australian My Health Record Scheme - A Comparative Study of Consent to Data Processing Provisions.

As a general rule, lawfulness of data processing under the European Union General Data Protection Regulation (EU 2016/679) (GDPR) is based on affirmative, unambiguous, voluntary, informed, and specific or "granular" consent to processing of their data, including health data, by individuals referred to as data subjects. The GDPR grants data subjects the legal right to specifically agree to (or refuse) having their data processed in any of the ways statutorily defined as "processing". Individuals also have the legal right to be fully informed about each and every intended use of their data by data processors and controllers, and the right to refuse such use. In Australia, once registered on the My Health Record (MHR) system, "healthcare recipients" as patients-cum-data subjects are called under the MHR scheme, have the right to remove documents from their MHR files and block some health care providers from accessing their data. However, this study demonstrates that the notion of "standing" consent that the MHR scheme appears to have created does not conform to any of the principles and rules governing data subjects' consent rights under GDPR.

Voluntary Assisted Dying Legislation in Victoria: What Can We Learn from the Netherlands Experience?

The Voluntary Assisted Dying Bill 2017 Vic (VAD Bill) was passed by the Legislative Assembly of the Victorian Parliament on 20 October 2017. The Bill is partly based on the Majority Report provided by the Legal and Social Issues Committee of the Victorian Legislative Council following its Inquiry into End of Life Choices (June 2016). The Majority Report recommended introduction of euthanasia and assisted suicide legislation. The Bill is modelled on the Ministerial Advisory Panel on Voluntary Assisted Dying Final Report, which drafted 66 recommendations on legalising administration and supply of substances for the purpose of causing the person's death. The Victorian government accepted the 66 recommendations, which the Chair of the Ministerial Advisory Panel, Professor Brian Owler, described as detailing safe and compassionate framework for voluntary assisted dying in Victoria. This analysis will focus on matters of major concern relating to the VAD Bill, namely criteria for accessing voluntary assisted dying and in particular, the age threshold and decision-making capacity. The proposed legislation resembles the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act of April 2002 (the Netherlands); consequently, the discussion will draw on the Dutch experience over the past 15 years.

Mental health legislation (civil) in Australia and China: A comparative perspective.

This comparative review of statutory provisions of Australian and Chinese law focuses on accessibility of mental health care, diagnosis, admission and treatment orders for involuntary patients in civil cases as well as discharge procedures. The introduction contextualises the object of the comparative study, including key rights and principles that are used as the basis for analysis. Such factors as different political and legal systems, history, culture, and infrastructure resources of China and Australia form the background for the legal examination. Not surprisingly, these five factors, rather than statutory texts per se, are found to be the most important drivers of each country's approach to the law of mental health. Two cases, XX v WW [2014] VSC 564 in Australia and Xu Lixin v Xu Canxing, Qingchun Psychiatric Rehabilitation Hospital of Shanghai [2015], known as the Right to Liberty Case, in China illustrate practical differences in legal approach to involuntary treatment. The comparative analysis concludes by identifying the most problematic aspects of the legislation in each country.

"My [Electronic] Health Record" ­ Cui Bono (For Whose Benefit)?

We examine the operation of Australia's national electronic health records system, known as the "My Health Record system". Pursuant to the My Health Records Act 2012 (Cth), every 38 seconds new information about Australians is uploaded onto the My Health Record system servers. This information includes diagnostic tests, general practitioners' clinical notes, referrals to specialists and letters from specialists. Our examination demonstrates that the intentions of successive Australian Governments in enabling the collection of clinical data through the national electronic health records system, go well beyond statutorily articulated reasons (overcoming "the fragmentation of health information"; improving "the availability and quality of health information"; reducing "the occurrence of adverse medical events and the duplication of treatment"; and improving "the coordination and quality of healthcare provided to healthcare recipients by different healthcare providers"). Not only has the system failed to fulfil its statutory objectives, but it permits the wide dissemination of information that historically has been confined to the therapeutic relationship between patient and health practitioner. After considering several other purposes for which the system is apparently designed, and who stands to benefit from it, we conclude that the government risks losing the trust of Australians in its electronic health care policies unless it reveals all of its objectives and obtains patients' consent to the use and disclosure of their information.

DISCIPLINARY PROCEEDINGS AGAINST DOCTORS WHO ABUSE CONTROLLED SUBSTANCES.

This study examined 27 reports from disciplinary tribunals throughout Australia (save Tasmania where reports were not accessible) against medical practitioners who abused narcotic analgesics (often combined with other drugs of addiction) between 2010 and 2015. The reports revealed that 12 medical practitioners were in their 40s; five in their 30s; and one person still in their 20s. Although the majority were general practitioners (15 out of 27), other medical specialties were also represented. Self-administered pethidine was the most prevalent opioid (11 out of 27) and was the only drug used alone. Morphine was self-administered by six doctors; the same number used high doses of Panadeine Forte, codeine and codeine phosphate. Fentanyl was abused by five doctors. Surprisingly, fewer medical practitioners appear to use propofol, and similar opiates such as tramadol (Tramol) and/or oxycodone (Endone). The examination of cases suggests lack of consistency in the imposition of professional sanctions and penalties by the relevant tribunals. To remedy this problem, it is suggested that disciplinary tribunals should apply the test of proportionality in the form of "reasonable necessity" when deciding whether to remove or suspend the addicted medical practitioner from the Register.

Minors' decision-making capacity to refuse life-saving and life-sustaining treatment: legal and psychiatric perspectives.

Laws in Belgium and The Netherlands permit euthanasia and assisted suicide for seriously ill children who experience "constant and unbearable suffering"--they have the capacity to request death by lethal injection if they convey a "reasonable understanding of the consequences" of that request. The child's capacity to understand death is therefore a prerequisite to the implementation of the request. However, modern neuro-psychological and fMRI (functional Magnetic Resonance Imaging) studies of the relationship between the neuro-anatomical development of the brain in human beings and their emotional and experiential capacity demonstrates that both are not fully developed until the early 20s for girls and mid-20s for boys. Unlike Belgium and The Netherlands, the clinical and legal implications of the immaturity of the brain on medical decision-making of minors, in particular life and death decisions, have been implicit in the Australian courts' approach to the refusal of life-saving and life-sustaining treatment by minors. This approach is exemplified by X v Sydney Children's Hospitals Network [2013] NSWCA 320 (and a series of earlier cases).

Disciplinary proceedings for inappropriate prescription of opioid medications by medical practitioners in Australia (2010-2014).

An analysis of 32 cases reported between July 2010 and September 2014 by professional disciplinary tribunals in New South Wales and Victoria against medical practitioners found guilty of inappropriately prescribing Sch 8 medications (mainly opioids) and Sch 4 drugs (mainly benzodiazepines) demonstrated, among others, a lengthy delay between the occurrence of the miscreant conduct and the conclusion of disciplinary proceedings. The study also raised questions about the appropriateness of utilising common criminal law theories of punishment and deterrence by non-judicial tribunals.

Opioid regulation: time to reconsider the nomenclature and approach.

In Australia, deaths due to the ingestion of opioid analgesics, though numerically small, have been increasing at a rapid rate. The reasons for this increase are multifactorial; the conceptually outdated legislation that controls prescription and administration of opioid analgesics might be one of them. The stated purposes of the governing statutory instruments include prevention of the improper use of drugs of dependence and protection of the public. However, in order to achieve these aims, the relevant legislation should utilise theories and definitions that are consistent with the medical understanding of the relevant physiology and behaviour, so as to provide a common linguistic and conceptual platform for regulatory and clinical decision-makers. Although Victoria, with its intricate statutory framework for Schedule 8 poisons, is used as an example of an obsolescent approach to the concept of drug dependency, conclusions reached are applicable to other jurisdictions, other scheduled drugs, and all health care practitioners who have the statutory authority to possess and prescribe them.

The interface of the civil and criminal law of suicide at common law (1194-1845).

Nowadays, suicide is considered essentially a private act, although what constitutes suicide for epidemiological and even clinical purposes in not wholly resolved. Historically, however, at common law, the act of self-killing was a felony with significant religious and legal consequences that impacted upon the deceased person as well as upon his or her whole family. This article identifies the influence of Christian theology, legal theory, and social and medical developments upon attitudes to the felony of self-murder and its definition. It focuses upon the start of more psychologically informed attitudes manifested in landmark court judgments involving exclusion clauses in English mid-nineteenth century insurance contracts. The article illustrates that the law in respect of socially controversial matters does not necessarily develops in a linear progression, nor does it accurately reflect public sentiments. More specifically, the article describes an ongoing definitional conundrum with suicide--whether it should be designated as committed by persons of significantly impaired mental state. The authors observe that in spite of reform to the criminal law of suicide, the civil law relating to suicide has continued to be characterised by ambivalence, ambiguity and significant vestiges of counter-therapeutic moralising.

Assisted suicide through the prism of the right to life.

Part of the reason for the ongoing confusion regarding the status of assisted suicide is the cluttered moral and legal matrix that is normally invoked to evaluate the practice. It results in a calculus that is impossible to coherently unravel, allowing commentators to tenably assert any position. The authors attempt to inject clarity into the debate by focusing on the issue through the lens of the most important interest at stake: the right to life. It is arguable that while there are well-established exceptions to the right to life, they only apply where the right to life is itself at stake (such as self-defence). There is no sound argument for suggesting that the circumstances underpinning suicide constitute another exception to the right to life. Thus, suicide and assisted suicide are unjustifiable. An analysis of the empirical data in jurisdictions where assisted suicide has been legalised suggests that legalisation leads to an increase in assisted suicides. The adverse indirect consequences of the often ostensibly compassionate act of assisted suicide outweigh any supposed benefits from the practice. It follows that assisted suicide should lead to criminal sanctions. At the same time, it is important to acknowledge that, paradoxically, the right to life arguments against assisted suicide mandate greater community measures to eliminate or reduce the causes of suicide.

The Duchess of Kingston's Case, the ruling of Lord Mansfield and duty of medical confidentiality in court.

The aim of this article is to demonstrate that the ruling commonly cited as the original precedent(1) for the doctrine that, at common law, medical practitioners' duty of confidentiality to their patients does not apply to court testimony,(2) did not, in fact, establish any such theory. The ruling by Lord Mansfield was made in the context of cross-examination by the Crown of a medical witness in the course of the trial of the Duchess of Kingston (Duchess of Kingston's Case (1776) 20 Howell's State Trials 355; [1775-1802] All ER Rep 623; [1776] 1 Leach 146), and this article will look briefly at: (1) the fascinating life of Elizabeth Chudleigh, the Dowager Duchess of Kingston, and the main events that led to her trial for bigamy; (2) the cross-examination of Caesar Hawkins and the different perceptions of the scope of confidentiality held by 18th century lawyers on the one hand and medical practitioners on the other; (3) Lord Mansfield's ruling that witnesses cannot withhold from the court facts which the law considers to be in the public domain; (4) the subsequent wide interpretation, usually as judicial obiter dicta, of its final paragraph during the 19th century, including early jurisprudential responses to the principle of medical confidentiality; and (5) the influence of John Henry Wigmore's opposition to patients' evidentiary privilege at common law during the twentieth century.

Decriminalisation of abortion performed by qualified health practitioners under the Abortion Law Reform Act 2008 (Vic).

In 2008, the Victorian Parliament enacted the Abortion Law Reform Act 2008 (Vic) and amended the Crimes Act 1958 (Vic) to decriminalise terminations of pregnancy while making it a criminal offence for unqualified persons to carry out such procedures. The reform legislation has imposed a civil regulatory regime on the management of abortions, and has stipulated particular statutory duties of care for registered qualified health care practitioners who have conscientious objections to terminations of pregnancy. The background to, and the structure of, this novel statutory regime is examined, with a focus on conscientious objection clauses and liability in the tort of negligence and the tort of breach of statutory duty.

From expert witness to defendant: abolition of expert witness protection and its implications.

In Jones v Kaney [2011] 2 AC 398, the United Kingdom Supreme Court held that in England and Wales (but not in Scotland), clients can sue expert witnesses in negligence and/or contract for work performed under their retainer, whether in civil or criminal trials. The duties of expert witnesses in England are regulated by the Civil Procedure Rules and Protocols; the former also regulate the conduct of cases involving expert opinions. The legal context that led to the litigation is examined in the light of these rules, in particular, the nature of the allegations against Dr Kaney, a psychologist retained to provide psychiatric opinion. Jones v Kaney, as a decision of the United Kingdom Supreme Court, is not a binding precedent in Australia. However, unlike statutory enactments, common law judgments are retrospective in their operation, which means that health care practitioners who follow a generally accepted practice today may still be sued for damages by their patients or clients in the future. By definition, the future, including the refusal by the Australian High Court to follow Kaney's abolition of expert witnesses' immunity from suit for breach of duty to their clients, cannot be predicted with certainty. Consequently, health care practitioners in Australia and other countries should be aware of the case, its jurisprudential and practical ramifications.

Operation of guardianship laws in the emergency ward.

Enduring and workable legislative schemes typically include (a) a balanced approach to the rights and duties of all parties under their purview; and (b) consideration of all major consequences that may flow from the codification of underpinning doctrines. This column examines the 1999 amendments to the Guardianship and Administration Act 1986 (Vic) regulating patients' consent to medical treatment focusing on their application in modern emergency departments. The legislation needs to reconcile the human rights principle that humane and appropriate treatment is a fundamental right of all those who suffer from ill health and disease, with the principle that all patients (including those with impaired, but not totally absent, decisional capacity) have an absolute right to refuse life-saving treatment. Consent and refusal of treatment provisions should be based on the notion of reasonableness, including recognition that the mental and emotional states experienced by physically ill people may, in the short-term, adversely affect their decision-making capacity. Unless the consent legislation factors in the realities of modern emergency practice and resources, statutory thresholds for decisional competence, instead of affording protection, may result in much worse outcomes for vulnerable patients.

Healthcare Identifiers legislation: a whiff of fourberie.

The Healthcare Identifiers Bill 2010 (Cth), which will establish "the national e-health Healthcare Identifiers Service to provide that patients, healthcare providers and provider organisations can be consistently identified", is in the process of being enacted by the Australian Federal Parliament. The legislation will enable the government to assign to each "healthcare recipient" a 26-digit electronic "Healthcare Identifier", which will be accessible, with or without the recipient's consent, to a broad range of health care service providers as well as other entities. The individual Healthcare Identifier file will initially contain such identifying information as, where applicable, the Medicare number and/or the Veterans' Affairs number; name; address; gender; date of birth; and "the date of birth accuracy indicator" presumably birth certificate. However, since each "service" provided by a health care provider to a health care recipient will be automatically recorded on each individual's Healthcare Identifier file, in time these electronic files should contain a full record of such services or contacts. Moreover, the Healthcare Identifiers are considered a "key" to, or a "foundation stone" for, the implementation of the shared electronic health records scheme, because they will enable linkage with and retrieval of each patient's clinical records throughout the health care service system. However, there has been virtually no discussion about the legal, ethical and social implications of this legislation.

Economic impact of Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497.

In Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497 the High Court of Australia held that, among other things, plaintiffs (who establish that they suffer a recognised psychiatric illness as a result of the breach of duty of care owed to them by the defendant under s 32 of the Civil Liability Act 2002 (NSW)) are entitled to recover damages for pure mental harm under s 30 if their psychiatric injury arose "wholly or partly from" a "series of shocking experiences" in the form of "a sudden and disturbing impression on the mind and feelings" in connection with witnessing at the scene "another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant". The High Court construed the phrase "being ... injured or put in peril" to include plaintiffs who suffer pure mental harm by witnessing at the scene another person being injured through the process of suffering pure mental harm in the form of psychiatric injury occasioned by the defendant's negligent act or omission. The Wicks decision raises the question whether the expanded liability of defendants for pure mental harm is economically sustainable.

Defendants' liability for pure mental harm to third parties in Australia: still a work in progress.

In Australia, both common and statutory law allows compensation for negligently occasioned recognised psychiatric injury, but distinguishes between pure mental harm and consequential mental harm. This column briefly discusses the concept of pure "mental harm" and the major Australian cases relating to defendants' liability to third parties for causing them pure mental harm (Jaensch v Coffey (1984) 155 CLR 549; Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Sullivan v Moody (2001) 207 CLR 562; and Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269). The analysis focuses on judicial approaches to determining liability in these cases, especially causation. Lack of guiding principles and precise tests for attribution of liability are illustrated by Kemp v Lyell McEwin Health Service (2006) 96 SASR 192. This case is analysed first in the context of common law, and then in the light of the reform legislation contained in the Civil Liability Act 1936 (SA) and similar provisions in other jurisdictions.

Prevention of suicide: police powers, parliamentary intent and judicial interpretation.

While in most countries suicide is no longer a crime, it is also acknowledged that the state has an interest in the preservation of human life, the prevention of suicide, and the protection of vulnerable persons from harming themselves. In a civil, secular and democratic society, however, the public law principle of state protective powers has to be balanced against the private law principle of personal autonomy (personal self-determination). Under the doctrine of autonomy, competent adults of sound mind can make legally binding voluntary choices, including the so-called "death-choice" (refusal of life-sustaining or life-prolonging treatment as well as suicide). To add to the complexity, whereas the powers of the state in relation to suicide and its prevention have been codified, the concepts of personal autonomy and personal liberty are grounded in common law. Kirkland-Veenstra v Stuart [2008] Aust Torts Reports 81-936; [2008] VSCA 32, which is at present being considered by the High Court of Australia, exemplifies tensions that arise in the suicide-prevention area of jurisprudence. This article explores the powers and duties of police officers in relation to suicide prevention and the notion of mental illness by reference to the Kirkland-Veenstra case, the relevant statutory framework and the common law.