Sparks v Hobson must go to the High Court: here’s why

In NSW, Section 5O of the Civil Liability Act provides a defence to a doctor or health professional who is defending a negligence claim.

Under s 5O, a person will not be liable “if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice”.

S 5O is often regarded as re-introducing a version of the Bolam test, since the standard of care required of a professional person is ultimately determined by the practices of his or her peers.

In Dobler v Halverson, the NSW Court of appeal clarified how s 5O operates.  It pointed out that in a medical negligence case, both parties will call expert evidence to attempt to demonstrate that what the defendant did fell short of – or did not fall short of – acceptable professional practice [59].

According to the Court, the effect of s 5O is that if the court finds the doctor’s conduct was in accordance with “professional practice regarded as acceptable by some” in the profession, then (subject to the court considering professional opinion to be irrational), that professional practice will set the standard of care and the plaintiff patient will therefore fail: [59].

 

Sparks v Hobson; Gray v Hobson

Understanding about the scope of s 5O has been thrown into disarray by the NSW Court of Appeal in Sparks v Hobson; Gray v Hobson [2018] NSWCA 29 (1 March 2018).

The facts are complex.  Mr Hobson suffered from Noonan Syndrome, a genetic disorder that resulted in serious curvature of his spine and a reduced chest cavity that prevented his left lung from filling with air.  This caused breathlessness and restrictive airways disease.  He underwent surgery that was intended to strength his spine and relieve pressure on the chest cavity.

The first stage of the operation was uneventful; however, the second stage was brought forward because Mr Hobson was in intensive care due to pneumonia in his left lung and the obstruction of his left airway.  The second stage of the operation required Mr Hobson to lie face down on the operating table, while screws were placed in his spine.

The position of Mr Hobson during the operation, and the placing of the screws, created further pressure on the chest wall, further restricting his breathing.

Mr Hobson was regarded by the expert witnesses as presenting a “very unusual and difficult anaesthetic challenge due to the significant compression of his left main bronchus by his spine and due to the requirement for prone positioning during surgery” [296]

The operation began at 7pm on 17 November 2009.  The level of carbon dioxide in Mr Hobson’s blood rose during the surgery, and at 9.30pm, Dr Sparks administered a drug called vecuronium to try to improve ventilation.  It led to no improvement; also, vecuronium was a muscle relaxant, and it meant that spinal cord monitoring was thereafter ineffective.  From that point onwards, Dr Sparks could only be guided by the oxygen and blood pressure readings “as his criteria for stopping the operation” [177].

Dr Sparks described Mr Hobson’s high blood carbon dioxide level, at 8.30 to 8.35pm as “very serious”.  He had what the clinicians called “profound respiratory and metabolic acidosis”.  At 8.50, Dr Sparks made two telephone calls to two colleagues (Dr Barratt, an anaesthetist, and Dr Marshman, a cardiothoracic surgeon), but they were unable to make any further suggestions about how to reduce the risk of cardiovascular failure.

At around 9.25pm, Mr Hobson’s blood pressure and oxygen levels dropped dramatically, and at Dr Spark’s request, the wound was closed rapidly and the operation terminated.

One of the issues in dispute was whether Dr Sparks should have terminated the operation at a time earlier than he did.  There was evidence that due to respiratory collapse around 9.30pm, precipitated by obstruction of circulation (causing lack of oxygen), irreparable damage was done to Mr Hobson’s spinal cord, leaving him a paraplegic.

Although the surgery was later completed successfully, Mr Hobson’s paraplegia remained.

The trial judge found against both Dr Sparks, and the principal surgeon, Dr Gray.

On appeal, the Court of Appeal unanimously allowed Dr Gray’s appeal.  However, Dr Sparks’ liability was upheld by a majority of 2:1.

The Court of Appeal’s decision in Sparks v Hobson raises a number of issues relating to the interpretation of provisions in the Civil Liability Act.

These include the relationship between s 5O and s 5B, and the meaning of s5I.

This post focuses specifically on the court’s interpretation of the defence in s 5O.

The uncertainty introduced by the irreconcilable judgments of the Court of Appeal in Sparks v Hobson is so significant that it will be a great shame if leave to appeal to the High Court is not granted.

 

Irreconcilable judgments

In McKenna v Hunter & New England Local Health District [2013] NSWCA 476, Macfarlan JA pointed out that the defence in s 5O is premised on the defendant doctor demonstrating that they conformed with “a practice that was in existence at the time the medical service was provided” and secondly, that the “practice was widely although not necessarily universally accepted by peer professional opinion as competent professional practice”: [160].

This emphasis on the existence of a “practice” – in the sense of a pattern of response by medical practitioners to a clinical scenario, is in contradistinction to there simply being a widespread view among peers that what the defendant did in the circumstances of the case constituted “competent professional practice”.

The significance of the need for a “practice”, as suggested by Macfarlan JA, is that in an unusual case, there may be no relevant practice in existence that the defendant doctor can identify and appeal to for the purposes of a defence.

 

Basten JA

In Sparks v Hobson, Basten JA rejected the suggestion in McKenna that the defence in s 5O only applies where the defendant can identify “a regular course of conduct adopted in particular circumstances” [31].

McKenna was overturned by the High Court, so Basten JA thought that the reasoning of the majority of the Court of Appeal, on the interpretation of s 5O, was no longer binding: [35]

He said: “there is no grammatical or semantic difficulty in describing an argument run by counsel in a novel case as demonstrating competent or incompetent professional practice” [31].

In a novel case, Basten JA thought that a defendant may invoke the defence in s 5O “by reference to how an assessment of the circumstances (which may be unique) would be undertaken by a knowledgeable and experienced practitioner” [31].

Although Basten JA did not think a defendant needed to establish they acted in accordance with a “practice” (understood in the sense of an established course of conduct followed in the circumstances of the case), he nevertheless concluded that Dr sparks had failed to establish a standard, widely accepted in Australia, of competent professional practice, for the purposes of availing himself of the s 5O defence.

 

Macfarlan JA

In Sparks v Hobson, Macfarlan JA reiterated his approach in McKenna.  He said: “It is not enough that experts called to give evidence consider that the conduct was reasonable and that it would have been so regarded by other professionals if they had been asked about it at the time of the conduct” [211].

In this case, the surgery was highly unusual.  Although the expert witnesses all agreed Dr Sparks acted reasonably in the actions he took during the operation, and although they considered professional peers would likely have taken the same view, the experts and the defendant did not point to an established practice that was followed by Dr Sparks in the circumstances of the case [221].

In Macfarlan JA’s analysis, this was fatal to Dr Sparks’ defence: see [223].

 

Simpson JA

The third justice in the NSW Court of Appeal was Simpson JA, who considered that she was bound to accept the construction of s 5O adopted in the McKenna case.

But for the constraint of precedent, Simpson JA would not have adopted the approach of Macfarlan JA.

She said: “As construed in McKenna, s 5O can apply only in limited circumstances, where the defendant can, or seeks to, identify a discrete practice to which he or she conformed.  It necessarily excludes unusual factual circumstances, such as occurred in McKenna, and such as occurred in the present case.  It does not appear to me that s 5O was intended to have such limited application.  However, as I have said, I consider myself constrained to follow and apply that decision” [336].

In Justice Simpson’s view, Dr Sparks failed to establish a defence based on s 5O because he could not identify a “practice” to which he conformed in the highly challenging and unusual circumstances of the case.  This, “notwithstanding that the overwhelming medical evidence was that his conduct was in accordance with what was widely accepted in Australia as competent professional practice’” [346].

Despite this, Simpson JA found in favour of Dr Sparks because she thought that in the circumstances of the case, s 5I applied.

S 5I provides that a person is not liable for the materialisation of an inherent risk that cannot be avoided by the exercise of reasonable care and skill.

In her Honour’s view, once it was found that Mr Hobson’s deteriorating condition warranted the surgery “as emergency surgery”, and that the surgery carried the risk of paraplegia, s 5I applied to excuse Dr Hobson from liability.

In addition, Simpson JA concluded that the evidence did not establish that the failure by Dr Sparks to terminate the operation before 9.30pm amounted to a departure from the standard of reasonable care and skill required of a specialist anaesthetist [350], given that Mr Hobson “needed urgent surgery to ensure his survival”: [352].

 

The future of the s 5O defence

As things stand, the judgments of Justices Macfarlan and Simpson in Sparks v Hobson give majority support to an interpretation of s 5O that limits its scope as a defence for doctors in medical negligence proceedings.

The issue at stake goes to the heart of what the defence requires courts to do.

In the view of Justice Simpson, the task of the court when considering the defence in s 5O is not to choose between competing views but to determine whether as a factual matter, the acts and/or omissions of the defendant that give rise to allegations of breach of duty of care “had the acceptance of peer opinion, even if other peer opinion was different”: [345].

This view is consistent with the assumption that s 5O was intended to introduce a version of the Bolam principle into New South Wales law, thereby ensuring that medical practices, rather than a court, ultimately define the standard of care by which a doctor’s conduct will be judged.

If the view of Justice Macfarlan is followed, by contrast, the role of the court would focus on determining whether a relevant “practice” exists on which a defence might be founded.

In cases where no such practice exists, s 5O can have no application.

The question of standard of care and breach would then fall to be determined by the court, applying common law principles, “guided by the evidence of medical practitioners skilled in the area of medical practice in question” [321], and altered (to the extent that it is altered) by the principles set out in 5B [see [338] per Simpson JA].

 

So, on what basis did the  majority Justices consider that Dr Sparks had breached his duty of care?

Justices Basten and Macfarlan held against Dr Sparks.

According to Justice Macfarlan, Dr Sparks’ failure to terminate the operation was not limited to a short period of time, but extended for at least 20 minutes after the two telephone calls to Dr Barratt and Dr Marshmann until 9.25pm, when Mr Hobson’s blood pressure and oxygen level dropped.  By then the damage had been done.

Essentially, Justice Macfarlan thought the breach of duty was made out because Dr Sparks unreasonably ignored a “serious and imminent intra-operative danger” (the high carbon dioxide levels) when the other countervailing risk (the risk to Mr Hobson if the operation was terminated) did not have the same immediacy: [188].

Also, “Dr Sparks had to assess and respond to the immediate danger to Mr Hobson (rather than the more remote risks that could eventuate if the operation was not completed) because Dr Sparks’ duty as principal anaesthetist was to protect the patient’s well-being whilst the operation was in progress” [182].

Justice Basten agreed that the decision to allow the operation to continue for so long, after he had sought help from experienced colleagues, without success, was more than just an “erroneous clinical judgment” but was a breach of his duty of care to Mr Sparks [93].

What becomes of a country that cannot protect its young?

 

March for our lives, Washington DC, 24 March 2018

 

It’s too early to say if the grassroots social movement initiated by students who survived the gun massacre at Stoneman Douglas High School in Parkland, Florida will be successful in nudging America’s gun laws in the direction of rationality and evidence.

After killing 17 people with an AR-15 style semi-automatic weapon, and injuring 17 more, 19 year-old former student Nikolas Cruz left the school premises, blending in with the crowd and remaining free for an hour before arrested.

On March 24, students and gun control advocates took to the streets of Washington DC in a “March for Our Lives”.

They’re trying to start a movement.  You can join them.

“To the leaders, skeptics and cynics who told us to sit down and stay silent, wait your turn! Welcome to the revolution!” said student Cameron Kasky.

Barack Obama tweeted: “Michelle and I are so inspired by all the young people who made today’s marches happen. Keep at it. You’re leading us forward. Nothing can stand in the way of millions of voices calling for change.”

In the thick of it, as usual, my friend Professor Lawrence Gostin from Georgetown University Law School, who leads the O’Neill Institute for National and Global Health Law.  You can read about the march on his twitter account here.

He writes: “From a long life’s experience on health and human rights I have found that no meaningful change happens without bottom up social mobilization.”

He’s right.  This is true of gun control, tobacco control, and much else in public health.

Is there constitutional space for rational, evidence-based gun control laws in the United States?

It’s sometimes assumed that the US Second Amendment, which states that “the right of the people to keep and bear Arms, shall not be infringed”, leaves little room for rational, evidence-based gun control policies and laws.

This is not so, argues Professor Gostin in a recent paper published in the Journal of the American Medical Association.  For additional resources, click here, here, and here.

In fact, rational firearms laws are compatible with the Constitution and with recent caselaw, suggesting that the real problem is a political one.  Rational, evidence-based measures to reduce firearms deaths in the United States could include:

  • mandating a higher minimum purchasing age for firearms
  • prohibiting dangerous individuals from purchasing or owning firearms
  • requiring safe storage
  • banning weapons with especially hazardous properties such as military-style rapid-fire firearms and high capacity magazines, and
  • banning open carry of firearms (an emerging issue for college campuses, where academics receive advice about what to do in “active shooter” situations).

Young people exercising another of their constitutional rights, March for our lives, Washington DC, 24 March 2018.  (However, Rick Santorum suggests they would be better served taking CPR classes)

 

What makes bottom-up change happen?

This is a neglected but vitally important questions for public health lawyers.

Will the anger and conviction that fuels the “March for our lives” movement endure?  Will it prove capable of raising the resources that will be necessary to make a compelling case for change to the American people?

Public health advocates often focus on content: the technical content of the policies they advocate, the evidence, and the rational case for change.  And then nothing happens.

More than ever, advocates need to better understand the factors that catalyse change, the factors that make social movements successful, and enduring.

Jeremy Shiffman has written about why some global health issues attract attention while others languish: his scholarship is helpful in also analysing national public health issues.

For social constructionists like Shiffman, global health problems like HIV, polio, or non-communicable diseases do not have any inherent priority or significance.  The attention an issue receives, while not unrelated to epidemiological facts, is “always mediated by social interpretations”.

From a social constructionist perspective, the “core activity” of global health advocates is ideational: health advocates must advance truth claims about the problem and its solutions that resonate with the values and shared interpretations of political leaders and those who control resources.

On this view, global health (and the same could be said of national public health priorities) is a competitive – and brutal – process of portraying and communicating severity, neglect, tractability and benefit in ways that appeal to political leaders’ social values and concepts of reality”.

Yet increasingly, reality itself is no longer a shared experience.  Gun control advocates and gun enthusiasts might as well live in different universes.  Their sources of information are completely unrelated; the things they find persuasive utterly different.

Speaking in Sydney on a recent visit, Barack Obama said that “social and political structures had not yet worked out how to deal with rapidly changing communications technology, a world in which people no longer watched the same TV channels or read the same newspapers. The rapid pace of change was having a flow-on effect across the globe, and was likely to get faster still. Discourse was becoming increasingly fragmented, with people becoming hermetically sealed off from each other inside very different information universes.”

The triple cocktail of extreme individualism, neoliberalism, and populism have created a social landscape in which there is less and less shared ground when it comes to values and visions for a better life.

Speaking as a non-American, it seems to me that the scale of the challenge, for gun control advocates, is reflected in the reflexive tendency of the pro-gun lobby to castigate the very mention of rational gun laws, following [America’s latest semi-automatic gunfire massacre: insert details here] as exploitative – as politicizing a tragedy.

A couple of examples.  Jesse Hughes, whose band, Eagles of Death Metal, was performing at the Bataclan theatre in Paris on 13 November 2015 when terrorists stormed in and took hostages, eventually killing 89, went on an on-line rant, calling the Stoneman High School students “disgusting vile abusers of the dead”.

Another right-wing media type tweeted the following about David Hogg, one of the Florida students advocating for stricter gun laws: “I’ve been hanging out getting ready to ram a hot poker up David Hogg’s ass tomorrow.”

All because some students who survived a mass murder at their school dared express their opinion that government ought to introduce gun control laws to help make such rampages less frequent.

Like the tragedy of the massacre at Sandy Hook Elementary School, the gun massacre at Stoneman Douglas High School reflects the failure of policy, the failure of politics and politicians, and ultimately, the potential failure of a society.

What becomes of a country that cannot – or will not – protect its young?

Authoritarian regimes, that fail the protect basic freedoms, or do so only partially, start to look a whole lot better.

That’s bad news for freedom, and bad news for America.

 

Professor Larry Gostin will be speaking at Sydney Law School on 19 July, as part of an evening event titled: ‘Public health and health leadership in the USA: what can Australia learn’.  Sydneyhealthlaw.com will advertise this event in due course.  Professor Gostin will be teaching the unit of study, Global Health Law on 17-20 July; for more information on this unit, click here.  For more information on Sydney Law School’s Master of Health Law, click here and here.

NSW Law Reform Commission recommends far-reaching reform of guardianship legislation

In 2016, the New South Wales Law Reform Commission was asked to review the Guardianship Act 1987 (NSW), having regard to UN Convention on the Rights of Persons with Disabilities and a variety of other matters.

With the submission date for comments on the draft proposals now closed, we look forward to the final report.

The Commission’s draft proposals, available here, are wide-ranging.

The Commission would like to see a new Act called the Assisted Decision-Making Act introduced to provide a formal framework for assisted decision-making.  This Act would replace the Guardianship Act 1987, and the enduring power of attorney provisions contained in Part 4 of the Powers of Attorney Act 2003 (NSW).

This post highlights some of the most important changes the draft proposals would introduce.

New terminology, old concepts?

The Commission’s proposed legislation would introduce new terminology.  A “guardian” would be called an “enduring representative” (when previously appointed by the “represented person” in anticipation of reduced decision-making ability in future), and a “representative” if appointed by a court or tribunal.

The term “guardian” would disappear, replaced with references to persons who do not have “decision-making ability” for the purposes of a health care decision.

The proposed legislation would introduce a new definition of “decision-making ability” and would link each person’s decision-making ability to the particular decision in question, recognizing that their ability can vary, depending on the circumstances, including the time at which the decision is made (proposal 1.14).

The Commission asserts that the Guardianship Act contains no “clear or consistent definition of decision-making ability or capacity” (p 5).

However, Part V of the current Act, which governs medical decision-making, does clarify when a person is incapable of giving consent to medical treatment: ie when a person is “incapable of understanding the general nature and effect of the proposed treatment” or is incapable of communicating their consent or lack of consent: s 33(2).

Where this test is met, the common law’s presumption in favour of consent will be displaced, and the provisions governing substituted decision-making under the Act will take effect.

In cases such as Re C (adult: refusal of medical treatment) [1994] 1 All ER 819, 824, courts have identified the ability to comprehend and retain treatment information, to believe it, and to weight it in order to arrive at a choice – as the necessary capabilities a person must have in order to have the capacity to make a medical treatment decision.

In Re C, the court ruled that a patient with schizophrenia retained capacity to refuse treatment that involved amputating his right leg, which was gangrenous and ulcerated.

The case illustrates that a person’s capacity to make decisions about their medical treatment is not an “all or nothing” question, but one that arises in relation to the specific treatment under consideration.  Courts begin from a presumption of self-determination and inquire whether it is displaced on the facts.

Rather than relying on a presumption of capacity that may be displaced for the purposes of the particular medical treatment decision under consideration, the Commission’s proposals seek to introduce a definition of “decision-making ability (or capacity)” for all purposes.

Under the proposed legislation, a person would have decision-making ability if they can:

“(a) understand the relevant information;

(b) understand the nature of the decision and the consequences of making or failing to make that decision;

(c) retain the information to the extent necessary to make the decision;

(d) use the information or weight it as part of the decision-making process;

(e) communicate the decision in some way” (Recommendation 1.12).

However, for the reasons given above, this proposed definition does not appear to involve any genuine change to the pre-existing law.

 

New concepts: supported decision-making

In other areas, the Commission’s proposals clearly do involve substantive changes.

The Convention on the Rights of Persons with Disabilities, to which Australia is a party, recognizes the individual autonomy of all persons, including their right to make their own choices and their right to non-discrimination (Art. 3).

The Convention rights have contributed to a significant re-thinking of the current legislation.

The proposed legislation would introduce two new kinds of decision-making arrangements that have no counterpart in the Guardianship Act.

The first is “personal support agreements” – which formalise a situation where a supporter is appointed to assist a person to make decisions in particular areas of their life, such as health matters.

Under a personal support agreement, the supporter would be appointed by the represented person themselves, in anticipation of their future need.

The new legislation would set out the functions and responsibilities of supporters.

Those responsibilities include collecting information for the supported person, assisting them to communicate their decision, and advocating for the implementation of their decision.

The second mechanism is a “tribunal support order”.  A tribunal support order would appoint a “supporter” whose role is to assist the supported person to communicate their decisions.

It’s important to note that a supporter would not be authorised to make medical treatment decisions themselves, on behalf of the supported person, without the knowledge or consent of the supported person.

This is significant: it illustrates that a “personal support agreement” is distinct from the concept of enduring guardianship under current legislation.

Similarly, a “tribunal support order” is distinct from the concept of a guardianship order.

But what if the person in need of support is profoundly disabled in a way that means they cannot communicate their wishes or preferences?

A third kind of arrangement, an “enduring representation order” could apply here.  Here the analogy with an enduring guardian is appropriate: the enduring representative would be appointed by the represented person in anticipation that their decision-making ability might be reduced in future.

Under the proposed Act, the functions of the enduring representative, and limits on them, would be set out in the instrument of appointment.

Finally, the Commission envisages “representation orders” as a mechanism of last resort, which would replace current arrangements for guardianship and financial management under the Guardianship Act.

A “Public Representative” (who under the proposed legislation would replace the current “Public Guardian”) could be appointed as a person’s representative where no more suitable person was available.

The role of a “person responsible”, who is authorized to consent to major medical treatment in circumstances where no substituted decision-maker has been appointed (under Part V of the Guardianship Act) would continue.

Under Part V of the Guardianship Act, a person responsible cannot refuse life-supporting medical treatment, reflecting the fact that the purpose of Part V is to ensure that patients are not deprived of the treatment they need by their lack of capacity (s 32).

On the other hand, the legislation proposed by the Commission would extend to withholding or withdrawing a life-sustaining measure on behalf of the supported person (recommendation 6.14).

Furthermore, the regulation of medical decisions in Part V would be extended under the proposed legislation to cover health care decisions involving all health professionals who are regulated under the Health Practitioner Regulation National Law.

As a result, the restrictions on the provision of “special medical treatment” under the current Act would apply to “special healthcare” under the proposed Act.

While the current distinctions between “major medical treatment” (“major healthcare”) and “minor medical treatment” (“minor healthcare”) would be continued, the content of these terms would change.

For example, HIV testing and the contraceptive treatment are currently defined as “major medical treatment” in the Regulations; these would become “minor healthcare” in the proposed legislation (recommendation 6.12).

 

New concepts: prioritizing autonomy over best interests

A further example of the impact of Convention rights on the proposed legislation relates to the downgrading of “best interests” as a guiding principle for medical treatment involving persons who lack decision-making capacity.

Under the Guardianship Act, the substituted decision-making provisions found in Part V of the Act exist to ensure that patients are not denied medical treatment that they need by virtue of their lack of capacity to consent: s 32.

Caselaw has made it clear that Part V exists to provide a mechanism for lawfully administering treatment that is medically indicated and in the patient’s best interests.  It was not intended to create a mechanism for refusing treatment life-sustaining medical treatment: FI v Public Guardian [2008] NSWACT 263. (Whether this distinction can be maintained is another matter).

Under the current legislation, the patient’s best interests are balanced through provisions that authorize a “person responsible” to make treatment decisions (s 40), while allowing treatment without consent to save the patient’s life or prevent serious damage to their health (s 37). “Minor medical treatment” may also be provided where a person responsible is not available to consent and where the patient does not object (s 37). Disputes may be resolved by the Civil and Administrative Tribunal or the Supreme Court.

The views of a person who lacks the capacity to consent to proposed medical treatment are relevant, and must be taken into consideration by a “person responsible” who is given substituted decision-making power under the Act: see s 40(3).  However, the patient’s views are not determinative.

Similarly, when the decision maker is the Civil and Administrative Decisions Tribunal, the Tribunal is required to take several matters into consideration, including the views (if any) of the patient: s 44(2). However, the expressed preferences of a person who is incapable of consenting to medical treatment can’t trump the Tribunal’s assessment of that person’s best interests.

The Tribunal can only authorise medical treatment when it is satisfied that “the treatment is the most appropriate form of treatment for promoting and maintaining the patient’s health and well-being”: s 45(1).

(A person’s will and preferences are, of course, determinative in circumstances when they have made a valid advance directive in contemplation of their need for medical treatment at a time in future when they are not competent.  Courts have given effect to the previously expressed wishes of a person to refuse life-supporting treatment, contained in an advance directive, even when their effect is to shorten the patient’s life: see, e.g., Hunter and New England Area Health Service v A [2009] NSWSC 761).

The primacy of the principle of the patient’s best interests, in circumstances where a patient is not competent to decide about medical treatment would disappear in the Commission’s proposed legislation.

The proposed Act would contain general principles, the first of which is that the will and preferences of a person in need of decision-making assistance should be given effect to where possible.

Anyone exercising functions under the Act should be guided by the person’s “expressed will and preferences”. If these cannot be determined, they are to be guided by the person’s likely will and preferences, as they emerge from a person’s previously expressed will and preferences and by consulting people who have a genuine and ongoing relationship with the person and may be aware of that person’s will and preferences.

If there is no such person, then – only then – are decisions to be made to promote the person’s personal and social wellbeing. (Advance care directives, previously made when the person had decision-making ability, must also be respected) (proposal 1.11).

One issue that arises is the amount of leeway or wriggle room these proposed changes give family and associates of the patient to make hearsay allegations about the values, desires and preferences of the patient around particular kinds of medical treatment – in circumstances where the patient lacks decision-making ability and there is no advance directive.

These assertions about the patient’s values and preferences are given considerable weight in the Commission’s proposed recommendations.  The proposals are intended to honour the autonomy of a patient who cannot express it directly.

Will the proposed changes demonstrably serve the interests of those who lack decision-making ability – better than Part V currently does?

How much room is there for family and associates to act in their own self-interest – to the detriment of the person who lacks decision-making ability?

These are fair questions, especially since the proposed legislation would extend to refusals of life-supporting medical treatment, not only the provision of needed treatment to which a patient cannot consent.

Are you interested in health law?  Click here to see the units of study on offer in 2018 in Sydney Law School’s Master of Health Law and Graduate Diploma in Health Law.

A Foundation for a smoke-free world…funded by a cigarette multinational: more smoke and mirrors?

The Swiss like butter on both sides of their toast.

Headquartered in Lausanne, half an hour’s train ride from the World Health Organisation in Geneva, you’ll find the headquarters of the world’s most profitable tobacco company, Philip Morris International (PMI).

Makers of Marlboro and other global brands.

A few years ago, at the end of a very long interview, held in the PMI Boardroom, I asked a senior PMI executive what he would most like to tell the public health community.

This gentleman, although friendly and accommodating, had smoked all over me for three solid hours.

He said:

“I would like the public health community to try to spend some time listening to what Philip Morris has to say and to see whether or not we can reach some kind of agreement… I think if we continue to fight as opposed to try to reach an accord, we’re losing an opportunity, and I think that Philip Morris has a lot to offer that can help shape and develop regulation, but the public health community has [got] to get beyond its pre-conceived notion that anything that Philip Morris or any other tobacco company proposes is immediately suspect and inappropriate.  That would be my number one concern…”

The wish of this PMI executive was the same as that of every other tobacco executive I spoke to: he wanted governments and public health advocates to listen to his company.  He wanted to partner with the public health community, he wanted a role in shaping policy and regulation.  He wanted “the war” to end.

Philip Morris International may be a step closer to this aim with the launch of a new entity called the Foundation for a smoke-free World.

 

Foundation for a Smoke-Free World

Founded by Derek Yach, the former head of the WHO’s Tobacco Free Initiative, the Foundation was launched with a promise of US$80 million funding per year for 12 years from PMI.

The aims of the Foundation are to “advance smoking cessation and harm-reduction science and technology”.  These aims appear suitably aligned with PMI’s strategy of eventually replacing cigarettes with smoke-free products, and in order to get there, lobbying governments to give preferential treatment to non-combustible recreational nicotine products.

PMI’s website states that: “we don’t agree that banning cigarettes makes sense for smokers or for society at large.”

But speaking of the success of IQOS (a heated tobacco product manufactured by PMI) in South Korea and Japan, PMI CEO André Calantzopoulos suggests that in five years, as users of heated devices outnumber smokers, “That is when we could start talking to governments about phasing out combustible cigarettes entirely.

They’ve taken their time sharing it with us, but according to Philip Morris, there is an answer to the tobacco epidemic.  It seems you won’t find it in the World Health Organisation’s Framework Convention on Tobacco Control, nor in generations of experience with evidence-based tobacco control laws and policies.

Rather, the answer lies elsewhere:

Individual risk reduction X consumer switching = population harm reduction.

In particular, PMI wants smokers to start using IQOS, the first of four smoke-free products it is (apparently) building its future on.

Of course, PMI needs governments to play their part as well.

We are confident that the right mix of government leadership and commercial initiative will dramatically accelerate efforts to reduce the health burden of smoking.

Which is why, I suspect, substantial funding to the Foundation for a Smoke-free World makes sense at this time.

 

Independent?

The centrepiece of the Foundation’s claim to independence is the article on scientific integrity in its by-laws, which states:

“The goal of the Corporation is to promote and support significant scientific research that advances the field of tobacco harm reduction and reduces the public health burden of smoking-related diseases.  The Corporation shall not take into account the potential impact of that research on the image of the tobacco industry or any other industry or commercial entity”.

That sounds good, doesn’t it, if they can manage it?

The problem is that the funding for this Foundation would appear to depend on annual or periodic renewal by a tobacco multinational.

And that is howlingly significant.

The existence of the Foundation, certainly its size and clout, will depend on how the activities and results of the Foundation appeal to PMI’s board.

That may not be such a risk if you’re married to a vision of tobacco harm reduction that involves promoting the recreational nicotine products that PMI wants to flog around the world.

According to PMI CEO André Calantzopoulos, “The Foundation is a welcome driver of change, at a time when a smoke-free future is clearly on the horizon. We will welcome its recommendations to accelerate smoker adoption of less harmful alternatives.”

No doubt.

But if the Foundation, in all its independence, were to fail to effectively prosecute the case for harm reduction in a form that benefits PMI’s business case, surely the Board would re-consider its investment.  It would be mad not to.

 

No accident

The Foundation for a Smoke-free World has appeared at a time of unique risk for makers of e-cigarettes and heated tobacco products.

I would expect that part of the Foundation’s work, pursuant to its harm reduction agenda, would be to encourage governments to make e-cigarettes more available (in jurisdictions, like Australia, where they are banned), perhaps to tax them at a lower rate, and certainly to reverse the tendency seen in jurisdictions like California to apply smoke-free laws and minimum purchasing age restrictions equally to both cigarettes and non-combustible nicotine products. (See references to California’s legislation in a previous post).

In October, New York State became the latest U.S. state to ban use of e-cigarettes in restaurants, bars and indoor public places including workplaces.  (See here for the text of the legislation).

Addressing this dangerous tendency, and promoting a regulatory environment that allows recreational nicotine products to thrive, is best framed in terms of “saving lives”.

Australia’s Health Minister, Greg Hunt MP, has stated that he will not lift the ban on e-cigarettes: “not on my watch”.

For that, I believe, he deserves credit.

We can expect a gush of Foundation-funded research, ultimately paid for by Philip Morris, arguing that e-cigarettes and heated tobacco products save lives.

Rather than focusing on implementing the evidence-based controls in the Framework Convention on Tobacco Control, governments will be encouraged to switch strategy towards tobacco harm reduction, which translates into relaxing controls on the products that make PMI shareholders rich.

The World Health Organisation claims the Foundation has conflicts of interest and states: “WHO will not partner with the Foundation. Governments should not partner with the Foundation and the public health community should follow this lead.”

In the end, whatever the Foundation and its leaders think they are doing, given the scale of PMI’s investment, the  Foundation will perform a massively important public relations function for its economic parent.

These PR functions are important, given that in the here and now, PMI remains firmly in the cigarette business, exploiting markets around the world where tobacco control laws remain weak (see eg Kalra et al in Reuters).

 

Reaction to the Foundation for a Smoke-free World

To say that the launch of the Foundation has been taken badly by NGOs and global leaders in tobacco control is something of an under-statement.

Distinguished Professor of Tobacco Control at UC San Francisco, Stanton Glantz, writes that “Derek Yach’s journey to the dark side is now complete”, pointing out that PMI’s funding of the Foundation represents “about .1% of PMI’s revenues and 1% of its profits”.

Ruth Malone, Simon Chapman and colleagues write:

“This ‘new’ initiative is just more of the same lipstick on the industry pig, but in a way it’s far worse this time: by using a formerly high profile WHO leader as a spokesperson, PMI can also accelerate its longstanding ambition to splinter the tobacco control movement”.

WHO points out that if PMI supported a smoke-free world it would support evidence-based tobacco control policies that help people quit smoking, including tobacco taxes, graphic disease warning labels, and comprehensive bans on tobacco advertising, promotion and sponsorship.

These are building blocks of successful tobacco control.  They work.

The reality, in jurisdictions around the world, is that PMI opposes these measures.

Outside of rich western markets, where health considerations predominate, it’s business as usual for Philip Morris International and for Marlboro, their star brand.

(Marlboro advertising in Jakarta, Indonesia; the photo at the top, from the island of Lombok, is typical of advertising by Philip Morris International throughout the archipelego)

 

IVF stuff-ups and tort liability for loss of genetic affinity

Most of us know Singapore for its excellent airport, excellent food and other diversions.  But a recent decision of Singapore’s Court of Appeal, ACB v Thomson Medical, deserves attention.

The case is noted here.

In this case, a mistake was made in the process of an in vitro-fertilisation procedure involving a Singaporean Chinese woman and her German Caucasian husband.

Mistakenly, the wife’s egg was inseminated with sperm from an unknown Indian donor.

Baby P was born healthy, but with a different skin tone.

The claimant’s affidavit states that the pain and suffering that she suffered as a result, physically, mentally and emotionally, was “beyond words” and was “agonizing” [131].

In Australia and New Zealand, in 2014, nearly 34,000 women underwent nearly 68,000 cycles of assisted reproductive technology (ART), resulting in the birth of 12,875 babies.

With so many ART procedures taking place, it’s inevitable that Australian courts will see claims for loss of genetic affinity as well.

 

Wrongful conception, wrongful birth and loss of genetic affinity claims

Loss of genetic affinity cases are a bit different to the usual claims for wrongful conception and wrongful birth.

In wrongful conception cases, such as negligent sterilisation cases, the breach of duty of care results in the claimant falling pregnant in circumstances when they were seeking professional services in order to avoid doing so.

In other kinds of wrongful birth cases, however, the opposite is the case.  The claimant may have been trying to have a child, but due to the defendant’s breach, the child is born with disabilities in circumstances where, if due care had been shown, the claimant might have had an abortion, or might have avoided having a disabled child because a different IVF embryo would have been implanted.

These are just examples, of course, rather than an exhaustive explanation of wrongful birth claims.

In ACB v Thomson Medical, the claimant claimed the expenses she would incur in raising Baby P, a baby who, by virtue of the lack of genetic affinity with the legal father, would not have been born at all if due care had been shown.

 

Cattanach in the High Court of Australia

In Australia, in the High Court case of Cattanach v Melchior, a majority of the High Court allowed a claim for the costs of bringing the child up, at least until the age of 18 years.

Cattanach was a case where the provider mistakenly failed to investigate and simply accepted the patient’s assurance that her right fallopian tube had been removed when in reality it was still there.

The woman gave birth to a healthy child as a result of the transmigration of an egg from her left ovary to her right fallopian tube.

Following Cattanach, 3 state Parliaments moved swiftly to exclude the costs of upkeep.  In NSW, following amendments to the Civil Liability Act, only the additional costs that arise in caring for a disabled child (who would not have been born at all, but for the defendant’s negligence) can be claimed.

The judgments in Cattanach reflect fundamental disagreements about the nature of the damage suffered by the plaintiffs.

In a negligence claim, proof of damage is an essential element of the claim: it’s not enough merely to show the defendant breached their duty of care.

Justice Gleeson saw the claim for costs of raising and maintaining the child as a claim for a novel form of pure economic loss arising because a parent-child relationship had come into existence [26]-[27].

He didn’t regard the claim as being for economic loss that was consequential upon personal injury (that is, a personal injury taking the form of an unwanted pregnancy), because Mr Cattanach was also a plaintiff.

Overlooking the unwanted physical burden of pregnancy on Mrs Cattanach, and framing the entire claim in terms of pure economic loss, seems remarkable to me, but the deeper point for Justice Gleeson was that he thought Mrs Cattanach’s claim implied that the creation of the parent-child relationship was itself actionable damage.

Whereas in His Honour’s view, that relationship is not primarily financial in nature and is fundamental to society, and assigning an economic value to it is not possible [38].

The majority judges saw things differently.  Justices McHugh and Gummow stated that it was not the relationship or the child that was the damage, but the “burden of the legal and moral responsibilities which arise by reason of the birth of the child” [68].

Their Honours did not accept that the values of respect for human life, the stability of the family unit and the nurture of infant children required courts in Australia to reject a claim for costs of upkeep in circumstances where the child would never have been born but for the defendant’s negligence [76].

 

ACB v Thomson Medical in the Singapore Court of Appeal

The Singaporean case of ACB v Thomson Medical was a bit different, of course, to the High Court case of Cattanach.

Unlike Cattanach, in ACB the claimant was actively trying to conceive.  She wanted a mixed Chinese-German child.  What she got was a mixed German-Indian child.

It had the wrong skin colour.

Singapore is a pretty interesting jurisdiction to run the argument that the lack of genetic affinity, and the differences in physical appearance that followed from this, should be regarded in the eyes of the law as actionable damage or “harm”.

One thing that must be said about the judgment of the Singaporean Court of Appeal is that it is extremely thoughtful and a wonderful example of the judicial craft.

The justices systematically and carefully reviewed caselaw across many jurisdictions – it’s a magnificent case for health lawyers to read in order to come up to speed with wrongful birth claims in common law jurisdictions.

The justices were also honest when it came to making the value choices that they were inevitably required to make.

Ultimately, the court rejected the claim for costs of upkeep for Baby P for the reason that “the duty to maintain one’s child is a duty which lies at the very heart of parenthood, and thus the expenses which are incurred towards the discharge of this estate are not capable of characterisation as a loss” [90].

The court regarded the creation of the parental relationship that arose from Baby P’s birth as giving rise to both financial and non-financial obligations.  The court saw no reason why the financial consequences; that is, the cost of upkeep should be compensable, when the non-pecuniary costs were not [92].  In a poignant passage, their Honours included in these non-pecuniary costs “the hours of lost sleep spent putting [Baby P] to bed; the sorrow and worry endured during a bout of illness; or the simple act of blowing on a spoonful of hot soup before feeding it to her” [91].

If the court were to award damages at all, even for the quantifiable costs of upkeep, it would necessarily mean acknowledging, as actionable damage, aspects of a relationship which is “regarded as socially foundational” [101].

While this as a principled position that a court might reasonably take, I would personally give greater weight to the consequences of such reasoning.  The consequences are to create a zone of immunity where IVF providers don’t have to be answerable for careless conduct.

Denying the costs of upkeep in wrongful birth claims may also exacerbate the economic harm the claimant suffers, especially in circumstances when the claimant was seeking to avoid pregnancy.

 

Loss of genetic affinity

In the second part of its judgment, the Singaporean Court of Appeal went on to explain that the true basis of the claimant’s complaint was the disruption, by negligence, of her desire for a shared genetic link between herself, her husband, and her child [128].

The court concluded that “damage to the [claimant’s] interest in ‘affinity’ is a cognisable injury that should sound in damages” [135].

The court ultimately decided that appropriate compensation would be to award the claimant 30% of the financial costs of raising Baby P, not as costs of upkeep, but as recognition of the interference with her interest in genetic affinity with her child.

Which leads me to say: if it is the social importance, fundamental character or moral integrity of the parental-child relationship that is the basis for denying a claim for costs of upkeep, was it not somewhat odd for the court to nevertheless accept that the absence of a genetic link between the claimant and her child qualified as actionable damage?

Personally, what I find heartening, in fact inspiring, is the way that people can – and do – create families through the sheer force of their love and commitment to each other, irrespective of skin colour or genetic affinity.

We see this with adoption and same-sex families, not to mention second marriages.

These family units are here to stay, and deserve the same measure of protection as families where the heterosexual parents share genetic links.

If awarding damages for the coming-into-existence of an unwanted parent/child relationship is offensive in terms of principle, is it not equally offensive to award damages because the (innocent) child who is the subject of the parental relationship lacks genetic affinity with one of its parents?

 

Appraisal of the decision

The Singaporean Court of Appeal acknowledged that the loss suffered by the claimant was partly the result of a complex mix of biological and social factors, including racial attitudes that might not be praise-worthy.

However, I am puzzled why – if the court was persuaded to take a principled line on the fundamental importance of the family unit by denying a claim for the costs of upkeep – why it didn’t follow that principle through and also reject the claim for damages for loss of genetic affinity.

Families are more than the shared genes between children and their parents.

The “anguish, stigma, disconcertment, and embarrassment suffered by the claimant” [150] in response to the curiosity of others about Baby P’s skin colour might actually be based upon reactions that weaken the family unit, rather than strengthen it.

In summary, I agree with the decision the court reached, but I have reservations about its reasons.

Personally I do not see a claim for costs of upkeep as signalling a disrespect for the value of the family unit, at least when the alternative is to create a zone of immunity within which IVF providers are shielded from the consequences of careless conduct.

If we value families, we need to respect the conditions under which people choose to go into parenthood, especially when they seek to avoid parenthood altogether, and also when they enter IVF arrangements in order to ensure a genetic link with their children.

In recognising an action for loss of genetic affinity, and providing a novel resolution to a claim for wrongful birth,  the Singaporean Court of Appeal was taking a pragmatic path that enabled it both to underscore the fundamental importance of the family unit, while still providing a remedy for the consequences of carelessness in the provision of IVF.

Health law at Sydney Law School

Are you interested in studying health law?  Sydney Law School’s Graduate Diploma in Health Law, and Master of Health Law are open to both lawyers and non-lawyers.  For further information, click here.  For information on Sydney Health Law, the Centre for Health Law at Sydney Law School, click here.

Announcement: Sydney Law School, QUT combine in hosting health law masterclass

Sydney Health Law, the focal point for health law teaching and research at Sydney Law School, and the Australian Centre for Health Law Research at QUT, are co-hosting a health law masterclass at Sydney Law School on Friday 6 October, 9.00am-4.00pm.

Click here for registration, and a preview of the program and of the presenters.

The masterclass will feature discussion of legal issues of interest to both practising health lawyers and practicing health professionals and will features academic staff from Sydney Health Law, the Australian Centre for Health Law Research, and distinguished legal and health practitioners.

Thematic areas to be covered include developments in professional liability, recent health law issues relating to children, reproduction and the beginning of life, consent to medical treatment, and end of life decision-making and legislation.

This event features a “controversies and hot topics” panel featuring all the presenters.

This event will be of particular interest to practising health lawyers who provide services to the health sector, health professionals with an interest in legal, bioethical and regulatory issues, executives and managers of health care organisations, and students.

Are you interested in studying health law?  Sydney Law School’s Graduate Diploma in Health Law, and Master of Health Law are open to both lawyers and non-lawyers.

Liability for failure to effectively manage morbidly obese patients: it’s time to look again at Varipatis v Almario – here’s why

What should a GP do with a morbidly obese patient who is in denial about their weight problem?

Although it involved a complex set of facts, it’s time to revisit Almario v Varipatis (No 2) [2012] NSWSC 1578, reversed on appeal (Varipatis v Almario [2013] NSWCA 76).

Doctors should take no comfort in the fact that Dr Varipatis’ liability was reversed on appeal.  It’s doubtful the case would be decided the same way today.  This post explains why.

Judgments in both courts remain important for their discussion about what a GP’s duty of care requires in terms of specialist referral [see box at the end of this post].

In future, more and more Australian GPs will end up managing obesity and its complications.  The problem is only going to get worse, given the changes in the weight distribution of the population, and the reluctance of Australian governments to take prevention seriously.  In 2014-2015, 63.4% of Australian adults – that’s 11.2 million people – were either overweight or obese, and more than 5% had diabetes.

280 Australians develop preventable Type II diabetes each day (one person every five minutes).

Click here for a recent report prepared by Obesity Australia in partnership with PwC on the cost of obesity in Australia.

Revisiting Almario v Varipatis (No 2)

At the time he became a patient of Dr Varipatis, in 1997, Mr Almario had fatty liver disease and diabetes.  Both problems arose from his obesity.  Both problems were risk factors for more severe kinds of liver disease that could progress to cirrhosis and ultimately liver cancer.

However, Mr Almario was in denial about his weight problem, and believed his health problems were due to exposure to toxic chemicals in the workplace.

Mr Almario had previously worked as a cleaner at the Union Carbide Centre at Rhodes in Sydney, which was a contaminated site.  Mr Almario was not directly involved in remediating the site, but had cleaned toilets and showers used by those who were directly involved.

There was no evidence his liver problems were caused by toxic exposures.

Nevertheless, Mr Almario sought out Dr Varipatis because the latter had an interest in nutritional and environmental medicine.

In 2009 Dr Varipatis had been found guilty of unsatisfactory professional conduct for administering high doses of IV vitamin C to a patient with renal disease.

Dr Varipatis treated Mr Almario between August 1997 and February 2011.  Mr Almario developed cirrhosis in 2001, and this progressed to liver cancer in 2011.

Trial court decision

When it reached the NSW Supreme Court in 2012, Mr Almario’s legal case was essentially that Dr Varipatis’ duty of care required him to take active steps to address Mr Almario’s morbid obesity.

Mr Almario had a history of failed weight loss attempts, and given his beliefs about toxic exposures, he was not a compliant patient.  Nevertheless, there were two main opportunities to prevent further deterioration to Mr Almario’s health: to refer him to a multi-disciplinary obesity clinic or endocrinologist; or to refer him for assessment for bariatric surgery (waist band surgery that physically constricts the size of the stomach and the amount of food that can enter it).

Mr Almario’s case was based on the claim that if he had undergone bariatric surgery, then it was likely he would have lost significant weight: this would have halted the progression of liver disease, preventing the cirrhosis and liver cancer that are complications of liver disease.

In his judgment, the trial judge repeatedly said that the patient had the disease of morbid obesity and that it was life threatening: Almario v Varipatis (No 2) [2012] NSWSC 1578 (21 December 2012), [67], [83], [93], [98].

The trial judge found that given Mr Almario’s co-morbidities and history of failed weight loss attempts, a reasonable GP would have referred Mr Almario to a surgeon for assessment for bariatric surgery by mid-1998: [91]-[93].

In addition, the trial judge found that Dr Varipatis breached his duty of care in failing – by mid 1998 – to refer Mr Almario to a specialist in obesity management who could have investigated all options for managing Mr Almario’s morbid obesity: [98].

The trial judge stressed that management of a patient like Mr Almario was not a passive process.  “More pro-active involvement was required” even to the point of making the appointment for Mr Almario to attend an obesity management specialist: [97].

Varipatis on appeal

On appeal, the NSW Court of Appeal considered three issues.

(i) Doctors may have a duty to refer (although it is not an exercise in futility)

The Court of Appeal said unambiguously that a general practitioner’s duty of reasonable care to their patient may require them to encourage the patient to lose weight, and to encourage the patient to accept an appropriate referral.

Basten JA accepted that the duty of reasonable care may require a GP to advise a patient “in unequivocal terms that weight loss is necessary to protect his or her health, to discuss the means by which that may be achieved and to offer (and encourage acceptance of) referrals to appropriate specialists or clinics”: Varipatis v Almario [2013] NSWCA 76, [38].

On the other hand, that didn’t mean the GP has to write futile referrals if the patient has refused to take the doctor’s firm advice.

The duty of care is not an exercise in futility.

In this case, since the plaintiff had historically failed to follow the advice of his GP, the Court of Appeal thought that there could be no breach of duty in failing to “re-refer” the plaintiff to an obesity clinic: Varipatis v Almario [2013] NSWCA 76, [38]-[39], [114], [118].

(ii) Failure to refer for assessment for bariatric surgery was not a breach of duty (but is that a reasonable conclusion today?)

As far as referral for bariatric surgery was concerned, the Court of Appeal found that the weight of evidence did not support a duty to refer for assessment for bariatric surgery in 1998, since at that time the procedure still carried significant risks and was very uncommon: Varipatis v Almario [2013] NSWCA 76, [51][64], [118].

However, general practitioners should find no comfort in this finding.

Bariatric surgery is now much more common and performed on patients with a BMI of ≥40k/m2 or on those with a BMI of 35k/m2 or more and who have co-morbidies such as diabetes or cardiovascular disease.

Over the past 15 years, the number of bariatric procedures processed by the Australian Medicare system has risen from around 1,350 (2000) to more than 16,700 (2015).

(iii) Failure to refer to an hepatologist?

Thirdly, the trial judge, and the Court of Appeal found that even if the plaintiff had been referred to a hepatologist, Mr Varipatis would have failed (in the absence of bariatric surgery) to achieve weight loss.

Obesity was not understood to be a cause of liver disease before 2002, and there was no evidence that a hepatologist would have done anything other than advise the patient to lose weight, or refer the plaintiff to an obesity clinic: Almario v Varpiatis (No 2) [2012] NSWSC 1578, [155]-[157]; Varipatis v Almario [2013] NSWCA 76, [75]-[88], [118].

Understanding about the role of obesity in liver disease has developed since Dr Varipatis was treating Mr Almario, and if this case were re-litigated today, a court would be unlikely to conclude that no harm arose from failure to refer for specialist assessment.

Meagher JA also dismissed the appeal on the basis that a doctor will not be liable if a defendant can prove that, having taken a course of action that was consistent with reasonable care, the harm suffered would not have been avoided on the balance of probabilities.

In his Honour’s view, in circumstances where a doctor could discharge their duty by taking one or more precautions, the defendant doctor need only show that had they taken one of the precautions that was consistent with reasonable care, it would not likely have avoided the harm suffered by the plaintiff: Varipatis v Almario [2013] NSWCA 76, [106], [118].

 

So…why is the Varipatis decision worth re-visiting?

Dr Varipatis was essentially excused by the fact that his patient had a history of being unable or unwilling to follow advice, bariatric surgery for extreme obesity was still unusual in 1998, and because obesity was not understood as a cause of liver disease.

Close to 20 years later, the factual matrix that arose in Varipatis is really a wake-up call for medical practitioners to respond more aggressively and with a clear strategy to patients who present with severe obesity.[1]

Much more would be expected of GPs in 2017, I believe, than was the case in 1998.

Firstly, GPs could be exposed to lawsuits by obese patients who face fatal outcomes or complications as a result of their failure to receive timely assessment and referral.  That follows from basic principles well established in other cases.

Secondly, complaints against GPs might also be directed to the Health Care Complaints Commission, or to the Medical Council of NSW.  In such circumstances, there would be no need to prove that the complainant suffered harm or damage.

Thirdly, and admittedly in more unusual circumstances, health and social service professionals might also be liable for failure to comply with mandatory notification obligations.

Inquest into the death of “AA”

It’s worth considering all three possibilities against the facts that emerged in the Inquest into the Death of “AA”, a decision handed down on 26 September 2014.

On 29 September 2010, a 10 year-old boy called “AA” died quietly on the way to the John Hunter hospital.

He died from hypoxic brain injury following a cardio-respiratory arrest that was caused by his severe obesity, a condition that his parents had failed to address.

His death was largely unnoticed by the media.

It illustrates the wider epidemic of severe pediatric obesity, which is getting worse.

As the weight distribution of the pediatric population has shifted to the right, those on the extreme right (ie cases of severe pediatric obesity) risk falling off the edge.

The Coroner’s report details the interactions over the preceding two and a half years between AA and his school and the John Hunter hospital.

AA had severe obstructive sleep apnea and a history of missed medical appointments that the Coroner found amounted to medical neglect.

AA’s sister and his parents didn’t realize how critical the situation was because AA was frequently drowsy as a result of obstructive sleep apnea (para 237).

The Coroner found that Child Protection Intervention was necessary for AA’s medical condition to be addressed, because his parents were unable to help him.

Obesity and child protection

In a paper published in the Medical Journal of Australia in 2009, Shirley Alexander, Louise Bauer, Bernadette Tobin and I argued that in appropriate circumstances, failure to notify child protection services when parents of a grossly obese child are unable or unwilling to ensure he or she receives adequate support to moderate food intake and improve diet may constitute a breach of mandatory reporting provisions.

A child is at risk of significant harm if the child’s parents or caregivers are “unable or unwilling” for the child to receive “necessary medical care” (Children and Young Persons Care and Protection Act 1998 (NSW) s 23(b)(1)).

Broader determinants

Actions like referring a morbidly obese child to child protection services illustrate individual-specific solutions to a problem that has wider, societal causes.

A smarter, longer-term solution would be to moderate the influences that have contributed to children having the life-threatening disease of severe obesity.

In July 2016, the NSW government set itself a target of reducing overweight and obesity rates in children by 5% over 10 years: see NSW Strategic Plan for Children and Young People.

Reaching this target will require a basket of actions and will inevitably include the need to improve the food environment.

 

GPs duty of care and specialist referral

It has long been clear that doctors can breach their duty of care by failing to refer a patient for further investigation and management by specialists.  For example, in the missed cancer diagnosis case of O’Shea v Sullivan (1994) Aust Torts Reports 81-271, the court referred to the “golden rule” that “abnormal bleeding is due to cancer until proven otherwise”.  In PD v Harvey [2003] NSWSC 487, Cripps AJ found that the failure of GPs not to follow up a patient with HIV to ensure he kept an appointment they made for him at the Royal Prince Alfred Immunology Clinic was also a failure of reasonable care (para 70).  The patient in question went on to deceive (and infect) his sexual partner, who believed he was HIV negative.

[1] See Sally Gleeson, “Almario v Varipatis – A Weight Issue for General Practitioners”, Precedent (Sydney, N.S.W.), No. 121, Mar/Apr 2014: 48-50.