Health Health

Matter Examples


Disciplinary complaints

We have assisted one practitioner in defending eight complaints by seven complainants over a number of years, including those referred to the relevant registration board. In only one of those matters has a finding against our client been made; in that case, our client was merely cautioned.

  • In 2007, a complaint was made in relation to our client’s role in Family Court of Australia proceedings involving a custody dispute. The complainant alleged that our client engaged in unprofessional behaviour involving breach of privacy, intimidating tactics, bias, and improper costing arrangements. Our client elected to have the matter referred to the tribunal. Prior to a referral notice being filed, and as a result of advice provided by the board’s solicitors (following consideration of our submissions), the board reversed its decision and decided to take no further action against our client.
  • In 2009, a complaint was made in relation to our client’s role in Family Court of Australia proceedings involving a custody dispute. The complainant alleged, among other things, that the family report our client produced was biased and contained factual inaccuracies, and that its findings lacked evidence. The board investigated the matter and commenced disciplinary proceedings. Our client elected to have the matter referred to the tribunal. Prior to a referral notice being filed, and as a result of advice provided by the board’s solicitors (following consideration of our submissions), the board reversed its decision and decided to take no further action against our client.
  • In 2010, our client provided evidence in the Family Court of Australia in relation to the family report described in Matter Example No. 2. The complainant made an additional complaint alleging that our client’s evidence was inappropriate and biased, and alleging that she had perjured herself. The board referred the complaint to the Australia Federal Police (AFP) without notifying our client. The AFP rejected the complaint. The board then investigated the matter and subsequently made a finding. Our client challenged the board’s finding and elected to refer the matter to the tribunal. Our client was successful in the tribunal when it held that none of the grounds the board had relied on for a finding of unsatisfactory professional conduct had been established. The tribunal made a costs order against the board in favour of our client.
  • In 2011, a complaint was made against our client in relation to her use of a title. The board investigated the matter and subsequently referred it to a hearing, alleging that the practitioner had engaged in professional misconduct. Following our further submission, the board cautioned the practitioner for use of the title.
  • In 2013, a complaint was made in relation to our client’s preparation of a family report. The complainant’s allegations related to our client’s conduct during the interview process, especially in relation to the interviews of the children. The independent children’s lawyer provided a letter of support for our client. The board investigated and retained an expert to review the family report. The board’s expert expressed the opinion that the report was not only adequate for its purpose but a good example of a comprehensive report for a court dealing with a complex legal issue. Following consideration of the matter, the board dismissed the complaint.
  • In 2014, a complaint was made in relation to our client’s preparation of a family report. The complainant’s allegations related to our client’s recommendations that the subject child be provided with the opportunity to learn of and develop a relationship with their biological father and paternal family members. Following review of the practitioner’s submission, together with the letter of support provided for our client by the independent children’s lawyer, the board resolved to take no further action on the basis that it believed that the complainant’s allegations were lacking in substance.
  • In 2015, a complaint was made in relation to our client’s social assessment report. Our client was commissioned to provide an opinion as to whether there was a parent willing and able to protect the children from significant harm, as well as whether there was a parent available to make decisions regarding the long-term care, welfare and development of the children. It is worth noting that this case involved a long and complex child protection history that required a number of intakes and a protection notification. The board resolved to conduct an investigation and to retain an expert to review our client’s social assessment report. The board refused to take into account our concerns about whether the person it retained to review our client’s social assessment report was a true expert in the field. When the board’s expert produced an adverse report, we obtained a report from another expert and submitted that our expert should be preferred given their extensive experience and expertise. Following consideration of our submissions and the expert opinion we obtained on behalf of our client, the board resolved to take no further action against our client.
  • In 2016, a complaint was made by Child Safety in relation to our client’s conduct during interviews for a social assessment report. The independent children’s lawyer who retained the practitioner has provided a number of letters of support. The Federal Circuit Court has made orders consistent with our client’s recommendations. The matter is ongoing and is being defended.
Coronial inquests

We acted for a community nursing service following the death of a patient at an assisted-living home.

In this case, the patient developed pressure area wounds following an extended stay in hospital and was then discharged to an assisted-living facility where our client provided nursing services.

The patient subsequently died from respiratory arrest secondary to the sepsis following infection.

The coroner investigated the death.

Counsel assisting the coroner proposed recommendations regarding our client’s provision of care and treatment that had the potential to impose unreasonable burdens upon our client’s operations.

We obtained evidence that the treatment provided by our client to the patient was appropriate. In addition, we gathered and presented evidence that, following the patient’s death, the community nursing service undertook a review of its processes and improvements were made. In this context, we advocated against the recommendations that would have imposed significant burdens upon our client.

The coroner found that it was not necessary to make any recommendation directed towards our client, as it had been proactive in undertaking an internal review of its service and had implemented improvements following the patient’s death.

Finally, and most importantly, the coroner made no adverse findings in relation to our client.

Court applications on medico-legal matters

We acted on behalf of the Gold Coast HHS and sought treatment orders from the Supreme Court to authorise the administration of a blood transfusion (if required) to a 15 year old patient who was pregnant with twins. Relevantly, the patient and her parents identified as members of the Jehovah’s Witness faith.

Initially, all three were united in their refusal to consent to the patient receiving a blood transfusion during pregnancy or during the delivery of the twins. Later (in the absence of her parents) the patient gave consent to the administration of blood products if an emergency situation arose. The patient’s father did not consent on the basis of his faith. It was not known whether the mother’s position had changed.

Each of the patient’s treating practitioners considered the patient to be mature for her age, and assessed her as “Gillick competent” in relation to the decision to consent to or refuse a blood transfusion. However, it was recognised that there was potential for parental pressure as well as a significant risk of the patient changing her position again prior to delivery. The hospital therefore sought advice as to the extent to which it could rely upon the patient’s consent to override her father’s refusal of treatment, and the best course of action to protect the treating team.

A technical issue involved the application of section 20 of the Transplantation and Anatomy Act 1979 to a “Gillick competent” minor (potentially) refusing a life saving blood transfusion. Section 20 enables medical practitioners to administer blood transfusions to children without consent in certain circumstances. These include if the transfusion is necessary to preserve the life of a child and a parent or a “person having authority to consent” to the transfusion refuses consent. It was not clear whether this category of a “person having authority to consent” includes a “Gillick competent” child. This has not been tested by Queensland Courts.

A further technical issue for consideration was whether and when Court orders relating to the treatment of unborn children could be sought and, if so, how they might be enforced, and who the parties to the Court action should be in the circumstances.

After consultation with the treating practitioners and HHS legal officers, it was decided that given the legal uncertainties and the importance of enabling treating practitioners to act decisively and quickly without subsequent adverse consequences, that Court orders ought to be obtained. It was then necessary to seek these Orders quickly, so that they were of practical benefit, while ensuring that the names of the patient and her family were protected from publication having regard to the sensitive nature of the situation. We also sought to obtain sufficient evidence by way of affidavit from the practitioners to reduce the likelihood that they would need to attend Court to give evidence in person.

A non-technical consideration was the need for clinical staff to maintain a professional treating relationship with the patient, as well as the family who did not seek legal representation.

We provided clear, comprehensive and timely advice on the above technical issues to enable the HHS to decide whether to seek treatment Orders from the Court. We provided the treating practitioners with a practical checklist of matters to address in an upcoming consultation with the patient so that they could satisfy the evidentiary requirements of an appropriate “Gillick competence” assessment.

Once we received instructions, Court orders were successfully obtained. In the process we drafted comprehensive affidavit evidence of the treating practitioners to address the Court’s concerns. This ensured that the practitioners were not required to give evidence in Court. We also managed communications with the patient’s parents to ensure that they were kept up to date with the progress of the application, and obtained non publication orders to protect the patient’s privacy.

In making the treatment order the Court commended the HHS for seeking orders pre-emptively and in a timely manner. The key takeaway from this commendation is that, where treatment orders are necessary or there is potential for them to be required in certain circumstances, they should be sought prior to a situation becoming emergent where possible. Here, this assisted in providing certainty for the hospital and treating clinicians and also minimised the stress and trauma of the legal process for the patient and her family.

Complaints to the Queensland Office of the Health Ombudsman (OHO)

We acted for a hospital in relation to a case where a patient had made a complaint to the OHO regarding significant complications and infections following knee surgery.

In this case, the hospital instructed us to respond to the OHO’s request for information.

From our examination of the records, it was clear that the patient had suffered persistent infection for a number of years following the surgery and, as a result, had to undergo further medical procedures.

We reviewed the medical records and focused on the clinical follow-up and investigations. In addition, we studied the antibiotic regime that was used by the hospital.

In our submissions to the OHO, we argued that the infection had been treated appropriately with antibiotics and numerous washouts and debridements. More specifically, we showed that the patient had been provided with a high-level multidisciplinary assessment of their treatment, which included input from the orthopaedics team, the infectious diseases team, Hospital in the Home, haematology, occupational therapy and physiotherapy.

Based on this evidence, our submissions to the OHO argued that the patient had suffered from an unfortunate but recognised complication of the surgery.

A short period of time after we made our submissions, the OHO informed our client (the hospital) that a decision had been made and no further action would be taken.

Privacy and disclosure advice

We are currently acting for a hospital in a civil claim by a patient who suffered harm as a result of the criminal conduct of another patient while both were inpatients at the hospital. In addition to the civil claim, we are advising the hospital on a number of associated issues.

One of these issues involves advising the hospital regarding the tension between its obligations under the Privacy Act 1988 (Cth) and its disclosure obligations in a civil claim for compensation. More specifically, we are advising on to what extent the hospital is required and permitted to disclose documents from the perpetrator’s records in a situation where the hospital is under significant privacy obligations regarding the handling of the perpetrator’s sensitive personal information.

Privacy disputes

We are currently acting for a medical practice in a dispute with the Office of the Australian Information Commissioner. The medical practice is currently refusing to provide a former patent with unfettered access to her medical records, on the grounds that it reasonably believes that such access would pose a threat to the patient’s life, health or safety.

Medical Malpractice
  • We acted for a busy hospital that performed emergency surgery on a patient. The hospital became one of several respondents to a medical malpractice claim in the vicinity of $4 million. We obtained evidence in support of the hospital’s view that the treatment provided to the patient was appropriate. In addition, the hospital’s objective was to resist pressure from the medical defence insurers to contribute money to the settlement. We worked closely with the hospital to review the evidence and were able to establish that the evidence did not support any liability on the part of the hospital. The claim was resolved prior to litigation without any financial contribution from the hospital.
  • We acted for a hospital in a potentially media-sensitive claim where the claimant sought damages as a result of a terminal illness. Under the circumstances, the claim was fast tracked with an accelerated timetable, meaning that all the evidence was collected and the matter was resolved within a number of months. By investigating the matter promptly and thoroughly, we were able to advise the hospital regarding timely admissions of certain issues in the claim. This served two purposes: it removed the obligation on the hospital to disclose potentially sensitive internal documents; and it narrowed the issues, which helped ensure that the matter was resolved quickly. By focusing on the key issues of causation and apportionment, we were able to obtain a significant contribution from the medical defence insurer. This meant that the matter was resolved for an amount well below the reserve.
Medical Negligence
  • We assisted an insured dentist to draft a comprehensive response to the Australian Health Practitioner Regulation Agency. The response resulted in the early closure of an investigation regarding whether the insured dentist had injected foreign material into the patient’s soft palate.
  • We acted for a medical practice in a case where there was a delay in diagnosing cancer in a patient due to an administrative error. In this case, an unfortunate combination of events was involved, including the:

    • Administrative error
    • General practitioner who had requested the tests going away on leave
    • Patient failing to follow up on the tests.

We obtained an expert report from an oncologist stating that, although the claimant had to undergo a painful and unpleasant form of treatment, the ultimate prognosis or outcome was not affected by their delay in receiving treatment as a result of the administrative error.

  • We acted for a nurse and a rehabilitation hospital in a case where a patient had suffered a broken pelvis. In this case, the patient had been discharged from hospital, with her general practitioner (GP) having organised for her to be treated at the rehabilitation hospital. One evening the patient reported numbness in her legs and paralysis, but the nurse on duty did not take any immediate action. The patient ended up suffering from spinal cord damage, incomplete paralysis, incontinence and chronic pain. In defending the case, we focused on two key issues. First, we pointed out that the hospital was not a fully functioning hospital, but a rehabilitation hospital. Second, we obtained an expert report from a neurologist stating that there was a six-hour window during which the patient needed to undergo surgery. Even if the nurse had acted immediately, the time it would have taken to move the patient to a specialist facility and to wait for a specialist to arrive to undertake the surgery would have exceeded six hours. In short, we obtained expert evidence to show that the outcome would have been no different if the nurse had contacted the GP immediately on becoming aware of the patient’s symptoms. In the end, the matter was settled for $1 million, with the hospital contributing only $150,000.

  • We acted on behalf of a pharmacist who incorrectly dispensed medication for a two-year-old child. The child was given prescriptions for two medications. The pharmacist incorrectly affixed the labels onto the medicines, which led to the child taking four times more of one of the drugs than was prescribed. Another issue was that, when the error was discovered, it was alleged that the pharmacist should have advised the parents to take the child to hospital immediately for observation. Instead, the pharmacist advised the parents to take the child to a general practitioner (GP). We showed that the pharmacist’s advice to take the child to a GP was an appropriate response to the risk, because the pharmacist was aware of the concentration of the drugs in the prescriptions and in the child’s body. Using this approach, we demonstrated that at no stage was the child in danger. In addition, we ensured that the pharmacist admitted their error and undertook additional training. Finally, the pharmacy introduced new protocols, including a double-checking process for all prescriptions, to alleviate any concerns about a similar error occurring in the future.

  • We have acted for a number of physiotherapists and occupational therapists facing allegations that they incorrectly certified candidates for employment as fit to work in particular roles. In each case, the candidates suffered an injury. The key issue in each of these cases was disclosure. More specifically, although the candidates had been asked to fill in detailed forms with all relevant background information, they had not done so. As a result, we were able to show that, in these cases, the physiotherapists and occupational therapists were not responsible for the injuries that occurred.

  • We acted for an occupational therapist at a performance and professional standards panel constituted by the Australian Health Practitioner Regulation Agency.

  • We acted for a social worker facing a claim before a disciplinary body that the counselling they provided to children caused them psychological harm. In this case, the social worker had been retained pursuant to an order of the Federal Circuit Court to facilitate contact between the children and their father. We argued that, under the circumstances, the Court was in the best position to decide whether the counselling had caused psychological harm to the children, and the disciplinary body should leave the matter to the Court to decide. The disciplinary body agreed with this view.

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