Review article: Patients who leave before care is completed: What does the legal duty to warn mean for emergency department clinicians?

Patients leave ED for a variety of reasons and at all stages of care. In Australian law, clinicians and health services owe a duty of care to people presenting to the ED for care, even if they have not yet entered a treatment space. There is also a positive duty to warn patients of material risks associated with their condition, proposed treatment(s), reasonable alternative treatment options and the likely effect of their healthcare decisions, including refusing treatment. This extends to a decision to leave the ED before care is completed. The form of that warning may vary based on what is known about the patient's condition and the associated risks at the time. Specific documentation of warnings given is essential.

Does Legislation Impede Data Sharing in Australia Across Institutions and Jurisdictions? A Scoping Review.

In Australia, regulations governing data, including formal legislation and policies promulgated by private and public agencies, are often seen as a barrier to data sharing. This sharing can include between institutions, as well as across jurisdictional borders in a federated jurisdiction such as Australia. In some cases, these regulations place a barrier to sharing data across borders or between institutions without a prerequisite requirement. In other cases, these regulations may be perceived as a justification not to share data. The objective of this review was to analyse published literature from Australia to see what regulations were used to justify not sharing data, along with any other factors that might discourage data sharing. We searched PubMed, Scopus and Web of Science for empirical and policy articles discussing data sharing in Australia. We then filtered these results via abstract and conducted a full text assessment to include 33 articles for analysis. Although there are a few areas of notable regulatory divergence with respect to legislation governing health data, most regulations in Australia are relatively consistent. Further, the absence of uniform ethics approval between sites in different states was frequently cited as a barrier to data sharing.

Review article: Detaining patients against their will: Can duty of care be used to justify detention and restraint in emergency departments?

Every day in EDs, clinicians are faced with situations where they need to decide whether to detain a patient for assessment and treatment. For patients who meet the relevant criteria, provisions of mental health legislation can be used. For other patients, clinicians often rely on so-called 'duty of care'. This article briefly explores this complex area of law, including the relevant legislation, common law principles and grey areas. It also proposes an approach to decision-making in this area.

Clinical governance implications of a Victorian coronial finding regarding contrast-related anaphylaxis for health services and private providers of radiology services.

What is known about the topic? Anaphylaxis is a rare but inherent risk of treatments and investigational agents. What does this paper add? Using a recent coronial finding in Victoria, this letter explores clinical governance responsibilities of health services and private providers of radiology services with respect to anaphylaxis recognition and management. What are the implications for practitioners? There is a strong case for health service and corporate governance teams (for stand-alone clinics) to ensure that all staff have recent, adequate training to recognise and initiate treatment of anaphylaxis. Reliance on an ambulance response is not enough.

What can coronial cases tell us about the quality of emergency healthcare for prisoners in Australia?

OBJECTIVE: This research aimed to examine the legal and regulatory obligations of authorities and healthcare professionals in the provision of prison emergency health services and to identify problems in the provision of emergency care to prisoners by using case examples from coronial findings. METHODS: Review of legal and regulatory obligations and a search of coronial cases for deaths related to the provision of emergency healthcare in prisons in the past 10 years in Victoria, New South Wales and Queensland. RESULTS: The case review identified several themes - issues with prison authority policies and procedures that delay access to timely healthcare or compromise the quality of care, operational and logistical factors, clinical issues and stigmatic issues including prison staff attitudes to prisoners requesting urgent healthcare assistance. CONCLUSION: Coronial findings and royal commissions have repeatedly identified deficiencies in the emergency healthcare provided to prisoners in Australia. These deficiencies are operational, clinical and stigmatic and not limited to a single prison or jurisdiction. Applying a health quality of care framework focussed on prevention and chronic health management, appropriate assessment and escalation when urgent medical assistance is requested, and a structured audit framework could avoid future preventable deaths in prisons.

Who should provide expert opinion in emergency medicine-related medical litigation?

Expert evidence plays a central role in establishing the relevant standard of care in medical litigation. In Australia, little is known about the expert witnesses who provide evidence about the standard of care provided in ED. A sample of recent published case law suggests that a proportion of expert evidence about breach of the standard of reasonable care in ED is provided by medical practitioners who are not emergency physicians and/or have no recent practice experience in an ED. This may potentially distort the identification of the relevant standard of care. In the United States, the American College of Emergency Physicians has attempted to address this issue by developing and promulgating expert witness guidelines. Is there a case for the Australasian College for Emergency Medicine to assume an advocacy role and/or develop standards in this area?

Exploring Risk, Antecedents and Human Costs of Living with a Retained Surgical Item: A Narrative Synthesis of Australian Case Law 1981-2018.

OBJECTIVES: This study aimed to critically examine the circumstances contributing to, and the human costs arising from, the retention of surgical items through the lens of Australian case law. DESIGN SETTING AND PARTICIPANTS: We reviewed Australian cases from 1981 to 2018 to establish a pattern of antecedents and identify long-term patient impacts (human costs) of retained surgical items. We used a modified four-step process to conduct a systematic review of legal doctrine, combined with a narrative synthesis approach to bring the information together for understanding. We searched LexisNexis, AustLII, Coroner Court websites, Australian Health Practitioner Regulation Agency Tribunal Decisions and Panel Hearings, Civil and Administrative Tribunal summaries, and other online sources for publicly available civil cases, medical disciplinary cases, coronial cases, and criminal cases across all Australian jurisdictions. RESULTS: Ten cases met the inclusion criteria, including one coronial case, three civil appeal cases, and six civil first instance cases. Time from item retention to discovery ranged from 12 days to 20 years, with surgical sponges the most frequently retained item. Five case reports indicated possible deviations from standard protocols regarding counting procedures and record-keeping. In the four cases that reported on count status, the count was deemed correct at the end of surgery. Case reports also showed the human costs of retained surgical items, that is, the long-term impacts on patients associated with a retained surgical item. In eight of the nine civil cases, ongoing pain was the most frequently reported physical symptom; in three cases, patients suffered psychosocial symptoms requiring treatment. CONCLUSION: While there was little uniformity in the items retained or how items came to be retained, we identified significant time delays between item retention and item discovery, coupled with long-lasting physical and psychosocial harms suffered by patients living with a retained surgical item. Current prevention strategies, including national standards-based professional practices, are not always effective in preventing retained surgical items. An internationally standardised taxonomy and reporting criteria, more consistent reporting, and open access to event and risk data could inform a more accurate global estimate of risk and incidence of this hospital-acquired complication.

When patients behave badly: Consent, breach of the duty of care and the law.

Patients who are abusive or aggressive in ED raise special clinical and legal challenges. These include what steps clinicians should take to exclude serious illness/injury as the cause of the behaviour and when investigations or treatments can be imposed on these patients without their consent. Using a case illustration, this paper discusses legal issues which arise in this context, including how the standard of care owed by clinicians is determined and what may constitute a breach of duty; such patients' right to consent to (or decline) tests and treatment; and when clinicians may lawfully act without consent and/or control the patient's behaviour.

Are nurses recognised, prepared and supported to teach nursing students: Mixed methods study.

BACKGROUND: The requirement for clinical teaching and supervision of undergraduate nursing students is a continual high volume, high impact essential requirement of registered nursing staff. Nurses are integral in facilitating the learning of nursing students in the practice environment to deliver quality safe care. However nurses engaged in teaching and supervising nursing students have unique challenges. OBJECTIVE: To understand how well recognised, prepared, and supported nurses perceive they are to teach and supervise undergraduate nursing students in the practice environment? METHODS: Nurses from 12 different wards of two hospitals were invited to participate in the study. A sequential mixed methods approach comprising hard-copy questionnaires, completed by 59 nurses, and six focus groups. Four feedback sessions verified findings. RESULTS: A low level of recognition and support for the amount of time available to nurses to teach and supervise was reported from both survey and focus group data. Four themes emerged from focus groups. Nurses recognised their role to teach and supervise students; The role in teaching and supervision was not recognised at a system level; Nurses could be more prepared to teach and supervise students; and Nurses required more support for their role in teaching and supervising students. A major challenge was the low level of support nurses perceived from the education sector in preparing students for placements. The nurses reported a disconnection of components of the student placement system, which was difficult to negotiate when undertaking this teaching and supervision role. CONCLUSION: The complex practice environment, where nursing student numbers are increasing and nurses have to navigate an often disconnected student placement system, requires a rethink of the precentorship or buddy one-to-one model of clinical placement. Addressing these challenges will be an essential step in protecting the interests of the public, nurses and nursing profession.

Retained Surgical Items: Lessons from Australian Case Law of Items Unintentionally Left Behind in Patients after Surgery.

The retention of items within a patient after surgery is considered to be a serious issue within the health care community. Termed a "sentinel event", a retained surgical item (RSI) is one of eight reportable adverse events deemed to have the potential to seriously undermine the health care system in the eyes of the public. Yet despite the gravity of these events, there has been little opportunity for the courts to examine the liability issues surrounding RSIs. This article reviews the limited case law in this area and analyses the key legal issues which arise in claims for redress, including civil, criminal and disciplinary liability, involving those who have suffered harm from RSIs.

Expert Witness Immunity in Australia after Attwells v Jackson Lalic Lawyers: A Smaller and Less Predictable Shield?

Expert witnesses act as "injury brokers" in contributing to the analysis of what qualifies as legally recognised and compensable injury in medical negligence litigation. The orthodox approach in Australia is that expert witnesses, like advocates, are immune from suit in negligence. In Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572; [2016] HCA 16, the High Court of Australia upheld, but narrowed, advocates' immunity. This article outlines the decision in the Atwells case and after reviewing Australian authority on expert witness immunity argues that, given the recent narrowing of the scope of advocates' immunity, similar limitations are likely to be placed on the scope of expert witness immunity with two effects ­ it will be less commonly available and less predictably available.

Conclaves and concurrent expert evidence: a positive development in Australian legal practice?

Many Australian courts now prefer pre-hearing meetings of experts (conclaves) being convened to prepare joint reports to identify areas of agreement and disagreement, followed by concurrent expert evidence at trial. This contrasts to the traditional approach where experts did not meet before trial and did not give evidence together. Most judges, lawyers and expert witnesses favour this as a positive development in Australian legal practice, at least for civil disputes. This new approach affects medical practitioners who are called on to give expert evidence, or who are parties to disputes before the courts. Arguably, it is too soon to tell whether the relative lack of transparency at the conclave stage will give rise to difficulties in the coronial, disciplinary and criminal arenas.

Adapting to concurrent expert evidence in medical litigation.

In medical negligence litigation expert evidence has long played a dominant role. The trend towards the use of concurrent expert evidence is now well underway. However, for the lawyers and the doctors involved, the pathway is not yet familiar. Disputes have frequently arisen in the context of pre-hearing expert conclaves, given the adversarial nature of litigation and perhaps fuelled by fears of a less transparent process at this increasingly important stage. This article explains the concurrent expert evidence framework and examines areas of common dispute both in the conclaves and at trial, with a view to providing assistance to legal practitioners working in this area and the medical practitioners called upon to provide expert evidence in such litigation.