Some recent cases on s 5O of the Civil Liability Act 2002 (NSW)

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Image: Matt Madd, Flickr

Section 5O of the Civil Liability Act 2002 (NSW) (CLA) introduced a modified version of the Bolam principle into the law of civil liability in NSW, extended to professionals other than medical professionals (the original subject of the principle). The effect of s 5O(1) is that a court is prevented from making a finding of negligence against a defendant professional where it can be shown that he or she acted in accordance with a practice widely accepted as being competent by peer professional opinion, unless that opinion is irrational (s 5O(2)) (s 5P excludes the application of s 5O to risk warnings in certain circumstances). Three recent cases involving s 5O provide some guidance on how the provision should be interpreted.

“A practice”

In Sparks v Hobson [2018] NSWCA 29 (recently covered on this blog by Professor Roger Magnusson) the plaintiff, Mr Hobson, required corrective surgery to straighten his spine, which took place in two stages. The first stage proceeded without incident, but the second stage had to be brought ahead of schedule and done urgently. The surgery was terminated after the anesthetist, Dr Sparks, became concerned that Mr Hobson’s blood pressure and oxygen levels were dangerously low as a result him being positioned face down for the surgery. While a later surgery successfully addressed the spinal condition, Mr Hobson was rendered paraplegic as a result of the second urgent surgery. He brought an action in negligence against the hospital and members of his treating team, including Dr Sparks and the principal surgeon Dr Grey. The trial judge found that both doctors had been negligent in not terminating the surgery 13 minutes sooner than they did, and that s 5O could not be made out. The defendants appealed to the NSW Court of Appeal.

Dr Grey was successful in establishing that he had not been negligent, but a majority of the Court of Appeal found that Dr Sparks had been negligent in failing to terminate the surgery sooner. Justice McFarlan and Justice Simpson accepted that they were bound by the Court of Appeal’s reasoning in McKenna v Hunter & New England Local Health District [2013] NSWCA 476. Here, the court held that in order for s 5O to be established, a medical practitioner must demonstrate that what he or she did conformed with a practice that was in existence at the time the medical service was provided. Then, he or she must establish that that practice was widely (although not necessarily universally) accepted by peer professional opinion as competent professional practice.

Justice Basten rejected the requirement that there be “a practice” (described as a “regular course of conduct adopted in particular circumstances”), on the basis that the Court of Appeal’s decision in McKenna was overturned on appeal to the High Court and its reasoning was no longer binding. However, His Honour agreed with Justice McFarlan (but on different grounds) that Dr Grey’s evidence was insufficient to establish s 5O.

The majority’s judgment in Sparks v Hobson narrows the scope of the operation of s 5O, meaning that it will not be available in circumstances where the defendant cannot show that he or she followed a discrete, established “practice”. This includes in unusual factual situations or potentially, situations involving new medical techniques or procedures. The High Court recently denied an application for leave to appeal from the Court of Appeal’s decision.

“Irrational”

Under s 5O(2) peer professional opinion cannot be relied upon for the purposes of s 5O(1) if the court considers that the opinion is “irrational”. The NSW Court of Appeal considered the meaning of this term in South Western Sydney Local Health District v Gould [2018] NSWCA 69. The plaintiff, a young boy, slipped and fell on wet concrete and injured his thumb. He was administered antibiotics at Campbelltown Hospital and a different antibiotic at Liverpool Hospital, which he was transferred to in the evening on the day of the incident. However, gangrene developed in his thumb after he was discharged and it was amputated. The plaintiff successfully brought a claim in negligence against the health district responsible for Liverpool Hospital. The trial judge found that the treating team at Liverpool Hospital had been negligent in failing to give the plaintiff an additional course of a different antibiotic, and that the opinion of the defendant’s two expert witnesses (that the additional course of antibiotics was not required) was irrational under s 5O(2).

On appeal to the NSW Court of Appeal, Justice Leeming (with whom Meaghar J agreed) made a series of comments on s 5O after considering the history, objective and statutory context of the provision. Justice Leeming concluded that ([96]):

Text, context and purpose [of s 5O] all support the conclusion that it is a seriously pejorative and exceptional thing to find that a professional person has expressed an opinion that is ‘irrational’ and even more exceptional if the opinion be widely held. To consider a body of opinion to be ‘irrational’ is a stronger conclusion than merely disagreeing with it, or preferring a competing body of peer professional opinion.

Justice Leeming held that the trial judge had erred by conflating the process of resolving a conflict between competing expert opinions “with the entirely different process required by s 5O(2) of determining whether an opinion is ‘irrational’” ([65]). It was also procedurally unfair for the trial judge to find the evidence of the defendant’s witnesses irrational when this point had not been argued at trial or raised with either party. Further, the evidence of the defendant’s witnesses was sufficient to establish s 5O(1) and the appeal was allowed.

Does s 5O operate as a defence?

Based on the decision in Dobler v Halveson (2007) 70 NSWLR 151, s 5O has commonly been interpreted as a defence, meaning that the plaintiff must establish a breach of the duty of care for the purposes of s 5B of the CLA (as well as the other elements of negligence), following which the defendant must raise evidence that his or her conduct accorded with competent professional practice for the purposes of s 5O.

In Gould, Justice Leeming commented that the proper interpretation of Dobler was that if the defendant could establish the preconditions in s 5O, then it would act to set the standard of care. If the preconditions in s 5O could not be established then ss 5B and 5C of the CLA would apply. However, “[t]here is no occasion to compare the s 5O standard with that which would be considered in the application of s 5B in a case where the preconditions of s 5O have been made out” ([129]). Justice Leeming noted that this interpretation of s 5O was also suggested by Justice Basten and Justice Simpson in Sparks v Hobson. In that case, Justice Basten commented that ([18]):

…once s 5O is invoked, arguably the general exercise required by s 5B becomes otiose. There can only be one standard against which to judge the conduct of a professional defendant, although that standard may depend upon the resolution of conflicting evidence called by the plaintiff and the defendant. It is only if one takes the plaintiff’s evidence in isolation that a two-stage process, involving the assessment of the plaintiff’s claim followed by assessment of an affirmative defence, will arise. However, in a practical sense, that is not how the dispute should be determined. Rather, a judgment will be given based on all of the evidence. Nor is the exercise helpfully clarified by speaking of shifting burdens of proof. The question for the trial judge is ultimately whether the plaintiff has established that the conduct of the defendant failed to comply with the relevant standard of care.

According to Justice Basten, s 5O will be engaged where there is evidence of a widely accepted professional practice supporting the defendant’s conduct, but that evidence, when available, will set the relevant standard: “there cannot be two legally supportable standards operating in the one case” ([24]). So while the defendant may need to establish the elements of s 5O, it is the starting point for determining the standard of care owed by the defendant and whether the defendant fell below the standard of care – not a defence that is considered after breach has been established for the purposes of s 5B of the CLA.

“Professional”

The word “professional” is not defined in s 5O. It clearly extends to medical professions, but it is unclear which other professions it might include. The meaning of the word “profession” was considered in Zhang v Hardas (No 2) [2018] NSWSC 432. In this case, Ms Zhang sued Mr Hardas, a chiropractor, alleging that he had been negligent in treating her over 12 consultations between February and September 2007, causing her to develop a depressive disorder. The case concerned Mr Hardas use of an “activator” device on Ms Zhang’s spine, which delivered a significant force to the spine for the purpose of moving bones in the spine. Ms Zhang alleged that the device had been applied hundreds of times to her cervical spine during each of the consultations with Mr Hardas.

Justice Leeming in the NSW Supreme Court rejected this argument, with the evidence supporting Mr Hardas’ position that the device had been used no more than a dozen times during each session with Ms Zhang. Further, it was not reasonably foreseeable that a person of normal fortitude might suffer a recognized psychiatric injury as a result of undergoing treatment with the activator device when it was used no more than a dozen times on each occasion. However, Justice Leeming considered whether s 5O would apply, if His Honour was incorrect on the point of whether the plaintiff owed the defendant a duty of care, as argued by the defendant.

Justice Leeming considered whether Mr Hardas, as a chiropractor, could be said to be “practicing a profession”. After reviewing the history of professionalization, Justice Leeming stated that he preferred the view “that the essential nature of practising a profession is closely linked to a partial monopoly, justified by education and public benefit, and involving a measure of altruism distinct from the drive for profit” ([144]). However, Justice Leeming did not express a conclusive view of the meaning of the word “profession” for the purposes of s 5O, but instead confined his decision to the narrower question of whether chiropractors practiced a profession.

Justice Leeming noted that at the time the incident occurred, chiropractors were regulated under a series of acts, including the Chiropractors Act 2001 (NSW), the Health Care Complaints Act 1993 (NSW) and the Public Health Act 1991 (NSW). The Chiropractors Act established a Registration Board that developed a code of professional conduct for chiropractors and also included definitions of “professional misconduct” and “unsatisfactory professional conduct.” Public complaints could be made to the board, and the Act also established a Chiropractors Tribunal that dealt with complaints that could involve suspending or cancelling a chiropractor’s registration. The Public Health Act provided that a person could not engage in spinal manipulation unless they were a registered chiropractor.

Justice Leeming concluded that s 5O “was enacted in a context in which (a) it was plain that the conventional medical profession was squarely within the mischief to which it was directed and (b) legislation treated chiropractors in ways which were similar to medical practitioners”, including through the creation of a tribunal dealing with instances of professional misconduct, combined with statutory concepts of professional misconduct and unsatisfactory professional conduct ([169]).

The Chiropractors Act 2001 also consistently treated chiropractors as professionals and “there is every reason for the defined term “professional” in s 5O to extend to occupations regarded by the same Legislature as professional” ([169]). Accordingly, chiropractors could be regarded as practising a profession for the purposes of the provision. Further, “the notion of a licensed monopoly of people who practice spinal manipulation, with educational qualifications and mechanisms for admitting and excluding those who meet or fail to meet those standards, also appears to apply” ([170]).

Mr Hardas could establish that he had acted in a manner that was widely accepted in Australia as competent professional practice as he had established that the “activator technique” was widely accepted in Australia, and the fact that other chiropractors used different methods did not prevent him from establishing that he had followed competent professional practice (s 5O(3)). Justice Leeming left to one side the issue of whether s 5O required the defendant to establish that he or she had followed “a practice” but noted that Mr Hardas’ conduct would have met this requirement if necessary.

 

Accessing assisted dying in Victoria: how will it happen, exactly?

Last November, Victoria passed the Voluntary Assisted Dying Act, becoming the first Australian State to legalise assisted dying.

The Act comes into force on 19 June 2019.

How will a person lawfully use the Act?  This post provides a brief walk through the procedure established by the Act.

This is not the first time Victoria has been at the vanguard of law reform on a hotly contested bioethical issue.  In 1988, Victoria introduced Australia’s first advance directives legislation, the Medical Treatment Act (it was repealed on 12 March 2018, replaced by the Medical Treatment Planning and Decisions Act 2016).  Earlier, in 1984, Victoria passed the Infertility (Medical Procedures) Act 1984, the world’s first legislation regulating IVF and human embryo research,  now replaced by the Assisted Reproductive Treatment Act 2008.

Can’t talk about it

Prior to the Parliamentary vote, former Prime Minister Paul Keating argued passionately against the Act, writing that “The experience of overseas jurisdictions suggests that pressures for further liberalisation are irresistible”.

The Act is said to contain 68 safeguards to guard against abuse.

One of the most interesting safeguards is section 8(1), which states that a medical practitioner must not initiate a discussion with a patient that is “in substance about voluntary assisted dying”.

A doctor who does so engages in unprofessional conduct under (Victoria’s version of) the Health Practitioner Regulation National Law.

Section 75 of the Act also imposes mandatory notification requirements [to the Australian Health Practitioner Regulation Agency] on a medical practitioner who reasonably believes that another registered health practitioner has initiated a discussion about voluntary assisted dying, or offered to provide voluntary assisted dying in a manner that is not in accordance with the Act.

Mandatory notification requirements are imposed on an employer in the same circumstances (s 76).

Before assisted dying was legalized in Victoria, there was nothing unlawful about talking to a terminally ill person about assisted dying.  The topic was not “off the table”, so long as no action was taken.

But now, drawing a person’s attention to a lawful course of action under an Act of Parliament apparently amounts to reportable misconduct, in order to ensure that zealous health care workers do not nudge sick and distressed, aging or disabled people towards “euthanasia”.

Right to opt-out

There is no obligation on a medical practitioner to assist a patient to die under the Act.

Under section 7, a medical practitioner who has a conscientious objection to voluntary assisted dying has the right to refuse to provide information about assisted dying, to participate in the process the Act establishes, and to supply drugs or be present at the time an assisted dying substance is administered.

A complex process

With 143 sections, the Voluntary Assisted Dying Act is a complex piece of legislation.

This is intentional: the legislative requirements that must be satisfied before assistance in dying can lawfully be given are intended to act as safeguards against misuse.

Eligibility

Victoria’s assisted dying regime is only open to adults who have been resident in Victoria for at least 12 months – this is clear from section 9 [s 9(1)(b)].

This is intended to prevent Swiss-style euthanasia tourism – the kind of tourism illustrated in the film “Me before You” starring Emilia Clarke and Sam Claflin.

A person doesn’t meet the eligibility criteria for assistance unless they are suffering from an incurable disease that has reached such an advanced state that death is expected within 6 months, and the disease is causing suffering that is intolerable to the person [s 9(1)(d)].

One exception to this is in s 9(4), which allows a person to access assistance if they have a neurodegenerative disease that will cause death within 12 months.

Coordinating medical practitioner

The process of assisted dying under the Act begins when a person makes a “first request” for access to voluntary assisted dying to a registered medical practitioner (s 11).

This request may be verbal.  The medical practitioner may accept or refuse the request, but if they accept they must record the request, and become the patient’s coordinating medical practitioner (ss 13-15).

A coordinating medical practitioner must be either a medical specialist, or a vocationally registered general practitioner.

[A vocationally registered GP attracts higher Medicare rebates and special Medicare item numbers.  There are a variety of pathways to accessing these higher rebates, including through membership of the Royal Australasian College of GPs, or by meeting requirements for vocational registration by the General Practice Recognition Eligibility Committee.]

The coordinating medical practitioner must carry out approved assessment training and then assess whether the patient meets the eligibility criteria set out in s 9. (Approved assessment training must be approved by the Secretary of the Department of Health and Human Services [see s 114]).

In order to be eligible for voluntary assisted dying, a person must have “decision-making capacity” in relation to voluntary assisted dying: s 9(1)(c).

The term “decision-making capacity” is defined in s 4, and it requires a person to be able to understand information, retain it, and use it or weight it in order to reach a decision.  The person must also be able to communicate their decision to a medical practitioner.

The coordinating medical practitioner must be satisfied that the patient is acting voluntarily and without coercion, and that their request for assistance to die is enduring (s 20).

If they are assessed as eligible, the coordinating medical practitioner must report to the Voluntary Assisted Dying Review Board (established under s 92 – see s 21) and refer the patient for a consulting assessment (s 22).

Consulting assessment

The consulting medical practitioner who carries out the this assessment must have  completed “assessment training” (s 26) and must be a specialist or vocationally registered GP with at least 5 years’ experience and have “relevant expertise and experience in the disease, illness or medical condition expected to cause the [patient’s] death” (ss 23-24).

If the consulting medical practitioner concludes that all the eligibility criteria are met, they must notify the person and also notify the Board (s 30).

Formal written request

At that point, the patient may make a written declaration requesting access to voluntary assisted dying which meets the requirements set out in s 34.

This request must be signed by the patient in the presence of 2 witnesses and the coordinating medical practitioner.

Witnesses need to meet requirements set out in s 35 and must also sign a certificate dealing with matters set out in s 36.

Final request

The patient may then make a final request under s 37.  This final request must be at least 9 days after their first request (made under s 11), and at least one day after they were assessed by the consulting medical practitioner as eligible (s 38).  However, the requirement for at least 9 days of reflection following the first request may be shortened if the person’s death is imminent and they are likely to die within that 9 day period.

Following the final request, the patient must then appoint a contact person who, amongst other things, must return unused assisted dying drugs to pharmacists (ss 39-40).

The coordinating medical practitioner must then review all the documentation and certify that the request and assessment process complies with the Act.  They must give the completed final review form to the Board (s 41).

Voluntary assisted dying permits

This enables the coordinating medical practitioner to apply for a “voluntary assisted dying permit” for the patient (s 43).

There are 2 kinds of voluntary assisted dying permit.

The coordinating medical practitioner can apply for a “self-administration permit” under s 47 if the patient is physically capable of self-administering the drug or poison.  The drug in question must be specified in the permit.

Under s 45, a “self-administration permit” authorises the coordinating medical practitioner to prescribe and supply a quantity of drug for self-administration by the patient in sufficient quantity to cause death.  It also authorises possession of the drug by the permit holder, and possession by the contact person of unused drug – for the purposes of returning it to a pharmacist.

Alternatively, the coordinating medical practitioner can apply for a practitioner administration permit where the patient is physical incapable of self-administering or ingesting the poison or drug (s 48).

As you might expect, a practitioner administration permit authorises the coordinating medical practitioner to administer the drug in the presence of a witness only if the patient is physically incapable of doing so and the patient has decision-making capacity at the time the request for administration of the drug is made (s 46(c)).

This means that a patient cannot make an advance directive for assisted dying.

The decision to issue a permit is made by the “Secretary” ie the Head of the Department of Health and Human Services, doubtless under delegation (s 49).

Section 57 sets out the information that the coordinating medical practitioner must give the patient before prescribing a drug under a self-administration permit.  This includes information about how to self-administer the “voluntary assisted dying substance”, and the fact that the person is under no obligation to fill the prescription or to use it.  The drug itself must be stored in a locked box that satisfies prescribed specifications.

The Act also contains labelling and storage requirements, and requirements imposed on pharmacists.

Administration requests

Section 64 states that the patient may make an administration request to the coordinating medical practitioner, in the presence of a witness, to administer the drug specified in a practitioner administration permit.

The person making the request must be the subject of the permit, they must have decision-making capacity in relation to voluntary assisted dying, and they must understand that the drug is to be administered immediately after the request is made.

The coordinating medical practitioner will only have a practitioner administration permit if the person is physically incapable of self-administering the drug to themselves (s 46).

The drug can then be administered.

The witness and the coordinating medical practitioner must jointly fill out a form called the “coordinating medical practitioner administration form”, which must be sent to the Board (ss 65-66).

After the death

The death must be reported as voluntary assisted dying under the Births, Deaths and Marriages Registration Act 1966 (s 67).  The Coroner must also be routinely informed of such deaths (s 67(2)).

Section 80 protects a medical practitioner who acts in accordance with the Act from any kind of liability, including liability for unprofessional conduct or professional misconduct.

Part 8 of the Act includes a range of offences for people who take actions otherwise than in accordance with the Act.

Will doctors choose to participate in the process?

It remains to be seen whether Victorian medical practitioners regard the procedures established by the Act as so complex or cumbersome that they prefer to provide assistance informally, rather than triggering the Act’s processes and subjecting themselves to scrutiny.

I’d be surprised if there were not at least a few doctors who adopt this course of action.

The legislation is complex.  Doctors may also – again, for reasons of self-protection – confine themselves to traditional forms of palliative care.  Those who take a conservative view on the legalization of assisted dying may urge doctors to do this.

For example, if a coordinating medical practitioner administers a drug to a person who is the subject of a practitioner administration permit otherwise than as authorised by that permit, they are liable to life imprisonment (life or such other term as fixed by the Court) (s 83).

It is an offence to fail to give copies of forms to the Board (s 90) and for a contact person to fail to return the unused portion of a euthanatic drug to the pharmacist who dispensed it (s 89).

Using this new legislation is not for the faint-hearted.  Doctors who choose to do so will need to know what they are doing.

Are you interested in health law?  Sydney Law School offers a Master of Health Law that is open to lawyers, health professionals and other qualified applicants.  Click here and here for more information, or click here for information on the units of study on offer in 2018 and 2019.