Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. The reversal of the onus of proof through the obvious risk sections has attempted to extend the scope of the defence of voluntary assumption of risk. There is no liability for the materialisation of an inherent risk. Presumptions and mandatory reductions for contributory negligence have attempted to reduce the liability of defendants. It is now possible for reductions of 100% for contributory negligence. Apologies can be made with no admission of legal liability to encourage them being made and thereby reduce the number of actions being commenced. The peer acceptance defence has been introduced and enacted by legislation. There is protection for good samaritans even though the Ipp Report recommended against such protection. Limitation periods have been amended. Provisions relating to mental harm have been introduced re-instating the requirement of normal fortitude and direct perception. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages which has limited the liability of health professionals in medical negligence actions.

Loss of chance in medical negligence claims now a lost cause?

The question whether the loss of chance of a better medical outcome in cases of medical negligence should be recognised as actionable damage is ‘a question which has divided courts and commentators throughout the common law world.’ In April 2010, the High Court handed down its anticipated decision in the case of Tabet (by her Tutor Sheiban) v Gett (2010) 240 CLR 537. The issue considered by the court was whether the appellant could claim in negligence for the loss of a chance of a better medical outcome. This issue had not been considered by the High Court previously, the most relevant cases being Rufo v Hosking (2004) 61 NSWLR 678 and Gavalas v Singh (2001) 3 VLR 404. Claiming for a loss of chance in a personal injury action raises questions as to recognised damage and causation, and the members of the High Court considered both of these.

Improving patient privacy and confidentiality in one regional Emergency Department – a quality project

Background: Patient privacy and confidentiality (PPaC) is an important consideration for nurses and other members of the health care team. Can a patient expect to have confidentiality and in particular privacy in the current climate of emergency health care? Do staff who work in the Emergency Department (ED) see confidentiality as an important factor when providing emergency care? These questions are important to consider. Methods: This is a two phased quality improvement project, developed and implemented over a six month period in a busy regional, tertiary referral ED. Results: Issues identified for this department included department design and layout, overcrowding due to patient flow and access block, staff practices and department policies which were also impacted upon by culture of the team, and use of space. Conclusions: Changes successful in improving this issue include increased staff awareness about PPaC, intercom paging prior to nursing handover to remove visitors during handover, one visitor per patient policy, designated places for handover, allocated bed space for patient reviews/assessment and a strategy to temporarily move the patient if procedures would have been undertaken in shared bed space. These are important issues when considering policy, practice and department design in the ED.

Integration of CENA practice standards for postgraduate emergency nursing assessment

The use of professional competency standards to assess postgraduate nursing student’s clinical performance has been in place since 2004, at the Queensland University of Technology, School of Nursing & Midwifery (SONAM) when the Graduate Certificate in Emergency Nursing degree commenced. Emergency nursing students were assessed in their workplace, using a Clinical Performance Appraisal Tool or CPAT which was based on the Australian College of Critical Care Nurses (ACCCN) Competency Standards. With the subsequent formation of a separate Emergency Nursing Course advisory group in 2007, there was a review of clinical assessment course component. The release of the 2008 CENA revised Practice Standards for the Emergency Nursing Specialist’s, led to the emergency nursing course advisory committee supporting the integration of the CENA practice standards for assessment of emergency nurses in preference to the less relevant ACCCN competency standards. The SONAM emergency nursing study area team commenced the phasing in and progression of the CENA practice standards across the two Graduate Certificate units, and Graduate Diploma and Master of Nursing (emergency) clinical major options in 2009. As some units undertaken in the degree are available to nurses in other disciplines a separate CPAT was devised for the clinical assessments according to speciality context. The team has had to carefully consider how the professional standards are integrated into the teaching and assessment of the unit and not just applied instead of the ACCCN competency standards. Professional standards for the emergency context has also helped tailor course content and learning outcomes to be relevant across a number of emergency nursing contexts in Australia. The assessment of the CPAT is undertaken at the workplace by QUT appointed clinical lecturers. Clinical lecturers need to apply and have suitable postgraduate qualification to undertake the position. The clinical lecturer support role is well established at QUT. The integration of the new CENA practice standards has necessitated a review of the postgraduate assessment of emergency nurses. A clinical lecturer workshop has been organised to review role, scope and how to utilise the new look CENA based CPAT, clinical assessment format.

Policy analysis of disaster health management in China

Humankind has been dealing with all kinds of disasters since the dawn of time. The risk and impact of disasters producing mass casualties worldwide is increasing, due partly to global warming as well as to increased population growth, increased density and the aging population. China, as a country with a large population, vast territory, and complex climatic and geographical conditions, has been plagued by all kinds of disasters. Disaster health management has traditionally been a relatively arcane discipline within public health. However, SARS, Avian Influenza, and earthquakes and floods, along with the need to be better prepared for the Olympic Games in China has brought disasters, their management and their potential for large scale health consequences on populations to the attention of the public, the government and the international community alike. As a result significant improvements were made to the disaster management policy framework, as well as changes to systems and structures to incorporate an improved disaster management focus. This involved the upgrade of the Centres for Disease Control and Prevention (CDC) throughout China to monitor and better control the health consequences particularly of infectious disease outbreaks. However, as can be seen in the Southern China Snow Storm and Wenchuan Earthquake in 2008, there remains a lack of integrated disaster management and efficient medical rescue, which has been costly in terms of economics and health for China. In the context of a very large and complex country, there is a need to better understand whether these changes have resulted in effective management of the health impacts of such incidents. To date, the health consequences of disasters, particularly in China, have not been a major focus of study. The main aim of this study is to analyse and evaluate disaster health management policy in China and in particular, its ability to effectively manage the health consequences of disasters. Flood has been selected for this study as it is a common and significant disaster type in China and throughout the world. This information will then be used to guide conceptual understanding of the health consequences of floods. A secondary aim of the study is to compare disaster health management in China and Australia as these countries differ in their length of experience in having a formalised policy response. The final aim of the study is to determine the extent to which Walt and Gilson’s (1994) model of policy explains how disaster management policy in China was developed and implemented after SARS in 2003 to the present day. This study has utilised a case study methodology. A document analysis and literature search of Chinese and English sources was undertaken to analyse and produce a chronology of disaster health management policy in China. Additionally, three detailed case studies of flood health management in China were undertaken along with three case studies in Australia in order to examine the policy response and any health consequences stemming from the floods. A total of 30 key international disaster health management experts were surveyed to identify fundamental elements and principles of a successful policy framework for disaster health management. Key policy ingredients were identified from the literature, the case-studies and the survey of experts. Walt and Gilson (1994)’s policy model that focuses on the actors, content, context and process of policy was found to be a useful model for analysing disaster health management policy development and implementation in China. This thesis is divided into four parts. Part 1 is a brief overview of the issues and context to set the scene. Part 2 examines the conceptual and operational context including the international literature, government documents and the operational environment for disaster health management in China. Part 3 examines primary sources of information to inform the analysis. This involves two key studies: • A comparative analysis of the management of floods in China and Australia • A survey of international experts in the field of disaster management so as to inform the evaluation of the policy framework in existence in China and the criteria upon which the expression of that policy could be evaluated Part 4 describes the key outcomes of this research which include: • A conceptual framework for describing the health consequences of floods • A conceptual framework for disaster health management • An evaluation of the disaster health management policy and its implementation in China. The research outcomes clearly identified that the most significant improvements are to be derived from improvements in the generic management of disasters, rather than the health aspects alone. Thus, the key findings and recommendations tend to focus on generic issues. The key findings of this research include the following: • The health consequences of floods may be described in terms of time as ‘immediate’, ‘medium term’ and ‘long term’ and also in relation to causation as ‘direct’ and ‘indirect’ consequences of the flood. These two aspects form a matrix which in turn guides management responses. • Disaster health management in China requires a more comprehensive response throughout the cycle of prevention, preparedness, response and recovery but it also requires a more concentrated effort on policy implementation to ensure the translation of the policy framework into effective incident management. • The policy framework in China is largely of international standard with a sound legislative base. In addition the development of the Centres for Disease Control and Prevention has provided the basis for a systematic approach to health consequence management. However, the key weaknesses in the current system include: o The lack of a key central structure to provide the infrastructure with vital support for policy development, implementation and evaluation. o The lack of well-prepared local response teams similar to local government based volunteer groups in Australia. • The system lacks structures to coordinate government action at the local level. The result of this is a poorly coordinated local response and lack of clarity regarding the point at which escalation of the response to higher levels of government is advisable. These result in higher levels of risk and negative health impacts. The key recommendations arising from this study are: 1. Disaster health management policy in China should be enhanced by incorporating disaster management considerations into policy development, and by requiring a disaster management risk analysis and disaster management impact statement for development proposals. 2. China should transform existing organizations to establish a central organisation similar to the Federal Emergency Management Agency (FEMA) in the USA or the Emergency Management Australia (EMA) in Australia. This organization would be responsible for leading nationwide preparedness through planning, standards development, education and incident evaluation and to provide operational support to the national and local government bodies in the event of a major incident. 3. China should review national and local plans to reflect consistency in planning, and to emphasize the advantages of the integrated planning process. 4. Enhance community resilience through community education and the development of a local volunteer organization. China should develop a national strategy which sets direction and standards in regard to education and training, and requires system testing through exercises. Other initiatives may include the development of a local volunteer capability with appropriate training to assist professional response agencies such as police and fire services in a major incident. An existing organisation such as the Communist Party may be an appropriate structure to provide this response in a cost effective manner. 5. Continue development of professional emergency services, particularly ambulance, to ensure an effective infrastructure is in place to support the emergency response in disasters. 6. Funding for disaster health management should be enhanced, not only from government, but also from other sources such as donations and insurance. It is necessary to provide a more transparent mechanism to ensure the funding is disseminated according to the needs of the people affected. 7. Emphasis should be placed on prevention and preparedness, especially on effective disaster warnings. 8. China should develop local disaster health management infrastructure utilising existing resources wherever possible. Strategies for enhancing local infrastructure could include the identification of local resources (including military resources) which could be made available to support disaster responses. It should develop operational procedures to access those resources. Implementation of these recommendations should better position China to reduce the significant health consequences experienced each year from major incidents such as floods and to provide an increased level of confidence to the community about the country’s capacity to manage such events.

Advance directives, autonomy and the refusal of life-sustaining medical treatment

As Australian society 1s agemg, individuals are increasingly concerned about managing their future, including making decisions about the medical treatment they may wish to receive or refuse if they lose decision-making capacity. To date, there has been relatively little research into the extent to which legal regulation allows competent adults to make advance refusals of life-sustaining medical treatment that will bind health professionals and others when a decision needs to be made at a future time. This thesis aims to fill this gap in the research by presenting the results of research into the legal regulation of advance directives that refuse life-sustaining medical treatment. In the five papers that comprise this thesis, the law that governs this area is examined, and the ethical principle of autonomy is used to critically evaluate that law. The principal finding of this research is that the current scheme of regulation is ineffective to adequately promote the right of a competent adult to make binding advance directives about refusal of medical treatment. The research concludes that legislation should be enacted to enable individuals to complete an advance directive, only imposing restrictions to the extent that this is necessary to promote individual autonomy. The thesis first examines the principle of autonomy upon which the common law (and some statutory law) is expressed to be based, to determine whether that principle is an appropriate one to underpin regulation. 1 The finding of the research is that autonomy can be justified as an organising principle on a number of grounds: it is consistent with the values of a liberal democracy; over recent decades, it is a principle that has been even more prominent within the discipline of medical ethics; and it is the principle which underpins the legal regulation of a related topic, namely the contemporaneous refusal of medical treatment. Next, the thesis reviews the common law to determine whether it effectively achieves the goal of promoting autonomy by allowing a competent adult to make an advance directive refusing treatment that will operate if he or she later loses decision-making capacity. 2 This research finds that conunon law doctrine, as espoused by the judiciary, prioritises individual choice by recognising valid advance directives that refuse treatment as binding. However, the research also concludes that the common law, as applied by the judiciary in some cases, may not be effective to promote individual autonomy, as there have been a number of circumstances where advance directives that refuse treatment have not been followed. The thesis then examines the statutory regimes in Australia that regulate advance directives, with a focus on the regulation of advance refusals of life-sustaining medical treatment.3 This review commences with an examination ofparliamentary debates to establish why legislation was thought to be necessary. It then provides a detailed review of all of the statutory regimes, the extent to which the legislation regulates the form of advance directives, and the circumstances in which they can be completed, will operate and can be ignored by medical professionals. The research finds that legislation was enacted mainly to clarify the common law and bring a level of certainty to the field. Legislative regimes were thought to provide medical professionals with the assurance that compliance with an advance directive that refuses life-sustaining medical treatment will not expose them to legal sanction. However, the research also finds that the legislation places so many restrictions on when an advance directive refusing treatment can be made, or will operate, that they have not been successful in promoting individual autonomy.

Refusal of medical treatment : a child's prerogative?

Society has a need for children to be able to make health care decisions. Homeless children need access to health care. Parents may not be accessible or competent to consent to their child’s health care. The familial relationship may have broken down. Children may not want their parents to know about drug, alcohol or pregnancy related issues. There is legal and academic support for the right of children to make autonomous decisions with respect to their health care. However what these decisions cover and who can make them is not clear. Whether or not a minor has capacity and is therefore competent to consent to medical treatment is a question of law. Some states of Australia have enacted legislation, while others rely on the common law to determine this issue. At common law a minor is capable of giving consent to medical treatment when he or she achieves a sufficient understanding and intelligence to be able to understand fully what is proposed. Known as ‘Gillick competence’ this is a well known principle of law. The question posed by this paper is whether the decision of a ‘Gillick competent’ child can and should be overridden by the court?

Problems with a great idea : referral by prehospital emergency services to a community-based falls-prevention service

Background and aim Falls are the leading cause of injury in older adults. Identifying people at risk before they experience a serious fall requiring hospitalisation allows an opportunity to intervene earlier and potentially reduce further falls and subsequent healthcare costs. The purpose of this project was to develop a referral pathway to a community falls-prevention team for older people who had experienced a fall attended by a paramedic service and who were not transported to hospital. It was also hypothesised that providing intervention to this group of clients would reduce future falls-related ambulance call-outs, emergency department presentations and hospital admissions. Methods An education package, referral pathway and follow-up procedures were developed. Both services had regular meetings, and work shadowing with the paramedics was also trialled to encourage more referrals. A range of demographic and other outcome measures were collected to compare people referred through the paramedic pathway and through traditional pathways. Results Internal data from the Queensland Ambulance Service indicated that there were approximately six falls per week by community-dwelling older persons in the eligible service catchment area (south west Brisbane metropolitan area) who were attended to by Queensland Ambulance Service paramedics, but not transported to hospital during the 2-year study period (2008–2009). Of the potential 638 eligible patients, only 17 (2.6%) were referred for a falls assessment. Conclusion Although this pilot programme had support from all levels of management as well as from the service providers, it did not translate into actual referrals. Several explanations are provided for these preliminary findings.

A prospective cohort study of geriatric syndromes among older medical patients admitted to acute care hospitals

OBJECTIVES: To identify the prevalence of geriatric syndromes in the premorbid for all syndromes except falls (preadmission), admission, and discharge assessment periods and the incidence of new and significant worsening of existing syndromes at admission and discharge. DESIGN: Prospective cohort study. SETTING: Three acute care hospitals in Brisbane, Australia. PARTICIPANTS: Five hundred seventy-seven general medical patients aged 70 and older admitted to the hospital. MEASUREMENTS: Prevalence of syndromes in the premorbid (or preadmission for falls), admission, and discharge periods; incidence of new syndromes at admission and discharge; and significant worsening of existing syndromes at admission and discharge. RESULTS: The most frequently reported premorbid syndromes were bladder incontinence (44%), impairment in any activity of daily living (ADL) (42%). A high proportion (42%) experienced at least one fall in the 90 days before admission. Two-thirds of the participants experienced between one and five syndromes (cognitive impairment, dependence in any ADL item, bladder and bowel incontinence, pressure ulcer) before, at admission, and at discharge. A majority experienced one or two syndromes during the premorbid (49.4%), admission (57.0%), or discharge (49.0%) assessment period.The syndromes with a higher incidence of significant worsening at discharge (out of the proportion with the syndrome present premorbidly) were ADL limitation (33%), cognitive impairment (9%), and bladder incontinence (8%). Of the syndromes examined at discharge, a higher proportion of patients experienced the following new syndromes at discharge (absent premorbidly): ADL limitation (22%); and bladder incontinence (13%). CONCLUSION: Geriatric syndromes were highly prevalent. Many patients did not return to their premorbid function and acquired new syndromes.

Defences in medical negligence : to what extent has tort law reform in Australia limited the liability of health professionals?

Tort law reform has resulted in legislation being passed by all Australian jurisdictions in the past decade implementing the recommendations contained in the Ipp Report. The report was in response to a perceived crisis in medical indemnity insurance. The objective was to restrict and limit liability in negligence actions. This paper will consider to what extent the reforms have impacted on the liability of health professionals in medical negligence actions. After an analysis of the legislation, it will be argued in this paper that while there has been some limitation and restriction, courts have generally interpreted the civil liability reforms in compliance with the common law. It has been the impact of statutory limits on the assessment of damages through thresholds and caps which has limited the liability of health professionals in medical negligence actions.

Demand for public hospital emergency department services in Australia : 2000–2001 to 2009–2010

Objective: Hospital EDs are a significant and high-profile component of Australia’s health-care system, which in recent years have experienced considerable crowding. This crowding is caused by the combination of increasing demand, throughput and output factors. The aim of the present article is to clarify trends in the use of public ED services across Australia with a view to providing an evidence basis for future policy analysis and discussion. Methods: The data for the present article have been extracted, compiled and analysed from publicly available sources for a 10 year period between 2000–2001 and 2009–2010. Results: Demand for public ED care increased by 37% over the decade, an average annual increase of 1.8% in the utilization rate per 1000 persons. There were significant differences in utilization rates and in trends in growth among states and territories that do not easily relate to general population trends alone. Conclusions: This growth in demand exceeds general population growth, and the variability between states both in utilization rates and overall trends defies immediate explanation. The growth in demand for ED services is a partial contributor to the crowding being experienced in EDs across Australia. There is a need for more detailed study, including qualitative analysis of patient motivations in order to identify the factors driving this growth in demand.

Application of operations research techniques to improve efficiency in the emergency department

The main aim of this thesis is to analyse and optimise a public hospital Emergency Department. The Emergency Department (ED) is a complex system with limited resources and a high demand for these resources. Adding to the complexity is the stochastic nature of almost every element and characteristic in the ED. The interaction with other functional areas also complicates the system as these areas have a huge impact on the ED and the ED is powerless to change them. Therefore it is imperative that OR be applied to the ED to improve the performance within the constraints of the system. The main characteristics of the system to optimise included tardiness, adherence to waiting time targets, access block and length of stay. A validated and verified simulation model was built to model the real life system. This enabled detailed analysis of resources and flow without disruption to the actual ED. A wide range of different policies for the ED and a variety of resources were able to be investigated. Of particular interest was the number and type of beds in the ED and also the shift times of physicians. One point worth noting was that neither of these resources work in isolation and for optimisation of the system both resources need to be investigated in tandem. The ED was likened to a flow shop scheduling problem with the patients and beds being synonymous with the jobs and machines typically found in manufacturing problems. This enabled an analytic scheduling approach. Constructive heuristics were developed to reactively schedule the system in real time and these were able to improve the performance of the system. Metaheuristics that optimised the system were also developed and analysed. An innovative hybrid Simulated Annealing and Tabu Search algorithm was developed that out-performed both simulated annealing and tabu search algorithms by combining some of their features. The new algorithm achieves a more optimal solution and does so in a shorter time.

The Remnant Emergency Artlab

The REMNANT/EMERGENCY Artlab was funded by the Australia Council InterArts ArtLab Program in 2010 and involves 22 months of rigorous research and experimentation in several countries. The process will be developed between a core transdisciplinary team of practicing media artists, designers and engineers where possible working in consultation and collaboration with local creatives at each venue. Our team asserts that today’s environmental crisis is underpinned by a deep cultural crisis - and so to get our ‘house in order’ we urgently need to create better and more powerful ‘images’ of what a ‘citizen-led’, sustainable world might be. This ArtLab’s core aim is therefore to begin to understand how to develop and create such ‘powerful images’.

Applications of medical image processing in the diagnosis and treatment of spinal deformity

In Chapter 10, Adam and Dougherty describe the application of medical image processing to the assessment and treatment of spinal deformity, with a focus on the surgical treatment of idiopathic scoliosis. The natural history of spinal deformity and current approaches to surgical and non-surgical treatment are briefly described, followed by an overview of current clinically used imaging modalities. The key metrics currently used to assess the severity and progression of spinal deformities from medical images are presented, followed by a discussion of the errors and uncertainties involved in manual measurements. This provides the context for an analysis of automated and semi-automated image processing approaches to measure spinal curve shape and severity in two and three dimensions.