All.Insurance.Professional Indemnity

Western Australia

Hearsay evidence and implied assertions

Written by Laura Pilsworth

The recent decision of East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18 is an appeal of a 2017 decision by the District Court of Western Australia. In the original decision, the Court found that the Plaintiff’s wife’s evidence about the conversation between the Plaintiff and his surgeon did not support a conclusion that the surgeon did not give proper advice or that he’d breached the duty he owed to the Plaintiff.

The Plaintiff underwent two operations to remove a benign brain tumour. The first operation in 2006 was not successful in removing the entire tumour and the second surgery in 2007 resulted in the Plaintiff developing bacterial meningitis. This resulted in the Plaintiff sustaining a severe acquired brain injury.

A short time after his second surgery, the Plaintiff sneezed out a fatty plug. The Plaintiff and his wife were concerned and telephoned the Plaintiff’s surgeon. The Plaintiff was advised to place it in a jar of water and bring it to his next consultation. As the Plaintiff suffered from a severe headache that night, his wife telephoned the surgeon the next morning and was advised to go to the emergency department of the hospital.

No allegation was made against the surgeon for his conduct in either of the operations at the trial. Instead, the Plaintiff alleged that his surgeon failed to warn or advise him to seek emergency attention for the symptoms of meningitis. The Plaintiff also alleged that the hospital failed to exercise proper care in diagnosing and treating his meningitis once he had presented to the emergency department.

It was not contentious that upon learning that the Plaintiff had sneezed out a fatty plug after his surgery, the surgeon was obliged to canvass signs and symptoms of complications and tell the Plaintiff to be vigilant for any change in his condition. The Plaintiff should also have been told to immediately report any symptoms to his surgeon, or if he was not available, to seek emergency treatment.

Due to the Plaintiff’s brain injury he was unable to give evidence and the Plaintiff’s surgeon died in 2011. Therefore, the Plaintiff’s failure to warn allegation was based entirely on his wife’s evidence. The Plaintiff’s wife was not present when the Plaintiff told his surgeon that he sneezed out a fatty plug, but instead relied on the circumstances that the Plaintiff did not tell her that he was to watch for changed symptoms, upon developing a headache the Plaintiff did not go to hospital and when the Plaintiff’s wife rang the surgeon to report the Plaintiff’s symptoms, he did not say anything to the effect that he had previously warned the Plaintiff.

This kind of evidence falls within the category of “implied assertions”, when reliance is sought to be placed on an assertion implied either from a statement or from the conduct of a person not called as a witness. The Court was asked to draw an assertion about the Plaintiff’s knowledge of his prior conversation with the surgeon from the evidence of the Plaintiff’s wife.

At trial, the Court was unable to draw this assertion from the Plaintiff’s wife’s evidence.

The hospital appealed the decision and alleged in ground 1 that the primary judge erred in law in ruling that the Plaintiff’s wife’s evidence was inadmissible as hearsay to prove as an inferred fact that the Plaintiff’s surgeon did not offer the appropriate advice to the Plaintiff in that conversation.

The Court of Appeal found that it is necessary to examine the circumstances surrounding the inference, and not just assume that the hearsay rule is inapplicable because it involves an implied assertion.

In this case, the inference asked to be drawn was the advice the Plaintiff was either given or not given by his surgeon. The Plaintiff’s failure to mention the advice to his wife did not provide support for an inference to be drawn that he was not given that advice. As the inference involved the Plaintiff’s knowledge of a fact (as to what he was or was not told by the surgeon) to the existence of that fact, it infringed the hearsay rule.


Trends in patient complaints from OHO’s 2017/18 Report

Written by Andrew Mansfield and Alex Mitchell

The Office of the Health Ombudsman (OHO) is Queensland’s health service complaints agency. OHO works with the Australian Health Practitioner Regulation Agency (AHPRA), the national agency that supports the 15 national Boards to manage the registration and accreditation of their registered practitioners, to oversee and regulate registered health practitioners in relation to matters concerning their health, conduct and performance.

OHO’s 2017-2018 Annual Report identifies a number of trends in the management of health care complaints that will be of interest to health care providers and their insurers.

The Report notes:

  • 11,569 contacts were received by OHO, an increase of 13% from FY16/17, and 60% of which were accepted as complaints
  • the majority of complaints were made by patients (87%) with voluntary (9%) and mandatory (3%) notifications being the next main sources
  • 49% of complaints related to a practitioner whilst 54% related to a facility or organisation, with some relating to both
  • the top five practitioners identified by complaints were doctors (61%), nurses (18%), dentists (9%), psychologists (5%) and pharmacists (4%)
  • the top five issues raised by complaints were professional performance (37%), professional conduct (20%), communication (11%), medication (10%) and other issues (21%)
  • a range of improvements in OHO’s complaint handling timeframes, with increases of 85% in the number of investigations completed, 210% in the number of matters referred to OHO’s Director of Proceedings, and 333% in the number of matters filed in the Queensland Civil and Administrative Tribunal
  • OHO referred 2,145 matters to AHPRA. 80% of matters were referred at its intake and triage stage, which occurs before the assessment stage. The number of matters referred by OHO to AHPRA at the assessment stage remained steady at around 18.1%, and
  • although a year has passed since the Ombudsman was given the discretionary power to take immediate action against practitioners in cases where it is reasonably believed to be in the public interest, immediate actions are down by 59%, with the Ombudsman only taking this step on 21 occasions. In comparison, in this same period, AHPRA and the Boards took immediate action against 69 practitioners in Queensland.

What does this mean for health care providers and their insurers?

The Report shows OHO is taking an increasingly proactive approach to the processing of complaints in their early stages and the tackling the backlog of aged matters. This strategy appears to be underpinned by referring matters more pre-emptively than in past years.

The referral of matters by OHO to AHPRA at the intake and triage phase, rather than at later stages, in particular the assessment phase, will avoid providers having to respond to a complaint to two separate assessment processes. This will reduce the time, cost and stress to the provider, and insurers in turn will see an associated benefit from this.

In general, we have found that the earlier we are appointed to assist a provider respond to an OHO or AHPRA complaint, the greater the likelihood we are able to obtain a favourable outcome by being able to put all pertinent information before the decision-maker to ensure an informed decision is made.


Revised sexual boundaries guidelines and managing reverse power imbalances

Written by Jehan Mata

The Medical Board of Australia’s revised guidelines on sexual boundaries in the doctor-patient relationship is a refreshing reminder of the existence of a significant power imbalance in the doctor-patient relationship which requires trust and clear communication for the relationship to operate effectively. The guidelines were published on 12 December 2018 and issued under section 39 of the Health Practitioner Regulation National Law  It is clear under the guidelines that “there is no place for sex in the doctor-patient relationship” and outlines at sections 3.1 and 3.2 the spectrum of behaviours that breach (or may breach) sexual boundaries. Particular emphasis is placed on the need for informed consent, especially for physical examinations. The revised guidelines also include the following key changes:

  • a guideline on physical examinations
  • a new section on social media and a warning on maintaining clear professional boundaries
  • a requirement for patient consent to be obtained for medical students or other persons to be present during an examination or consultation
  • a warning that unwarranted physical examinations or examinations without informed consent may constitute sexual assault, and
  • the term “chaperone” has been changed to “observer”.

Although the guidelines are predominantly focused on addressing breaches of sexual boundaries by doctors, they also address a range of patient behaviours that should alert doctors that the boundaries may be crossed. These includes “patients requesting…non-urgent appointments at unusual hours or locations, especially when other staff are not present…patients asking personal questions, using sexually explicit language or being overly affectionate; [and] patients attempting to give gifts”.

While the guidelines firstly advise that in circumstances where a doctor senses warning signs or if patients openly talk about, display inappropriate feelings or exhibit sexual behaviour, doctors should take steps to re-establish the professional boundaries and seek advice from a colleague or their professional indemnity insurer. The guidelines however go further to advise that where there is a possibility that sexual boundaries could be breached, doctors should transfer the patient’s care to another practitioner. The guidelines do not provide advice as to how doctors should properly transfer a patient’s care and what steps need be undertaken before transferring care to minimise the risk of a complaint being made. Although a doctor may have legitimate reasons to cease providing care, simply transferring a patient’s care without properly documenting the concerning behaviour, seeking advice from a colleague, mentor or professional indemnity insurer, and documenting the advice and steps the doctor has taken to prevent the behaviour from re-occurring, opens the door to complaints being made when patients don’t understand why the doctor-patient relationship was terminated.

In circumstances where doctors have noticed warning signs and/or are concerned that a patient may be breaching sexual boundaries, they should take advantage of their right to choose to have an observer present during consultations and/or intimate examinations (section 7.1). The observer, having witnessed the consultation “can provide an account of the consultation if later there is an allegation of improper behaviour”. If the doctor ­has serious concerns and the patient refuses to have an observer present, they also have the right to choose not to proceed with the consultation. Once again, doctors should be mindful to document their concerns and the discussion they had with the patient before transferring the patient’s care.

The guidelines reinforce the need for health practitioners to be vigilant and to avoid crossing boundaries when dealing with their patients.

New South Wales

Publishing links to decisions on National Register of Health Practitioners

Written by Henry Bourke

Each of the National Health Practitioner Boards have decided under section 225(p) of the Health Practitioner Regulation National Law (National Law) to provide more information on the public register of practitioners (National Register) about practitioners tribunal and criminal history. The National Register is to include web links to published tribunal and court decisions. 

Under s 225(p) of the National Law, the National Register may include any information which the National Board considers appropriate. This is a very wide-ranging power and gives the Board discretion to provide a variety of information on a practitioner’s registration, even if it is not directly related to the practitioner’s registration or work.

Under s 226(2) of the National Law, a Board may decide that information relating to a practitioner may not be recorded if the practitioner requests it and the Board reasonably believes the inclusion of the information would present a serious risk to the health or safety of a practitioner.

A recent example involved a practitioner in NSW who appealed the findings of a NSW Assessment Committee pursuant to the National Law. The matter required that an interlocutory issue be settled before the hearing of any appeal. The interlocutory question was whether the practitioner could appeal under sections 158A and 158B of the National Law. As such, the arguments put forth at NCAT were entirely limited to the application of the law, rather than any hearing of the appeal. NCAT found that the practitioner could not appeal the decision. AHPRA then wrote to the practitioner and informed him that they would be publishing the decision on his registration.

Following correspondence with AHPRA, it ultimately agreed that publication was unnecessary given it was limited to a point of administrative law. Whilst that was the common sense outcome, AHPRA were well within their rights to publish the matter on the practitioner’s registration. For the moment, it appears that AHPRA is taking a case-by-case look at what should be included on a practitioner’s registration. For the time being practitioners and their lawyers should remain vigilant about any publication of a decision on a practitioner’s registration, consider whether it relates to that practice or performance, and correspond with AHPRA when the subject matter is not relevant, as the above example outlines.

South Australia

Royal Commission into Aged Care, Quality and Safety is underway

Written by Lani Carter

The Royal Commission into Aged Care, Quality and Safety began in Adelaide on 18 January, with the Honourable Richard Tracey AM RFD QC and Ms Lynelle Briggs AO appointed as Commissioners.

Commissioner Briggs noted that they had already met widely with government and community stakeholders and had commenced research projects into emerging issues which would be made available on the website.

Commissioner Briggs said that invitations for submissions had been sent out, but that as yet the Commission had not used their powers to compel responses or information (unless requested). She noted that providers that did not comply with requests ultimately drew attention to themselves and she hoped that providers will continue to engage on a voluntary basis.

Commissioner Briggs noted the following likely themes of the Commission to be:

  • quality and safety
  • access and inclusion
  • young people with disability
  • interfaces and transitions
  • future challenges and opportunities, and
  • how to deliver quality care in a sustainable way.

The trends emerging from submissions received by the Commission were:

  • elder abuse
  • medication mismanagement
  • overuse of psychotropic drugs
  • food safety
  • facilities failing to respond in a timely manner to requests for assistance, and
  • wound management.

Commissioner Tracey advised that the Commission would aim to hold a public hearing in each capital city and in some regional centres.

Mr P Gray QC, Dr Timothy McEvoy QC, Mr Paul Bolster, Ms Brooke Hutchins and Ms Eliza Bergin attended as counsel assisting.  

The first substantive hearings began on 11 February 2019 in Adelaide with Mrs Barbara Spriggs, the wife of a former Oakden resident, and Mr Clive Robert Spriggs (the son of the former resident) called as the first witnesses.

The Royal Commission has since heard from stakeholders, advocacy groups and aged care providers in order to provide a foundation for the hearings to come.  The Commission has considered:

  • concerns from advocacy bodies regarding the current state of the system
  • clinical issues affecting the elderly (including dementia)
  • concerns of medical and nursing staff bodies
  • demographic information, and
  • the concerns of workforce representation bodies.

On 25 February 2019, the Royal Commission released its first background paper providing an overview of Australia's current aged care system entitled “Navigating the Maze: An overview of Australia’s Current Aged Care System”.

The Round 2 hearings are listed to begin on 18 March 2019 and are intended to focus on issues arising in Home Care (the of care and assistance given to elderly people living in their own homes).

Round 3 hearings will be held in May 2019 and will focus on Residential Care and will consider issues arising from the provision of services to people living with dementia.

To date, the Commission has received 800 submissions from members of the public. When Round 1 hearings opened in February, 79 of Australia’s top 100 providers had provided information to the Commission in response to its invitation to make a submission, with a total of 900 of the nearly 2,000 aged care providers having made a submission.

It will not be until later hearings that specific evidence will be led about particular allegations about certain providers. The Commission has not ruled out hearing case studies about particular instances of abuse, neglect, systemic failure or substandard care in future hearings. The Commission has advised that advanced notice will be given where possible to providers that are the subject of such allegations and an opportunity to respond will be afforded, but timeframes will be tight.

Preparation will be key for parties required to respond to allegations or case studies and providers would be wise to anticipate complaints and consider the organisational response well before receiving a notice to produce a witness statement and summons to attend a hearing.

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