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National Library of Australia Cataloguing-in-Publication Data

Stewart, Cameron,
The Australian medico-legal handbook.

Bibliography.
Includes index.
ISBN 978-0-7295-3760-5 (pbk.).

1. Medical laws and legislation—Australia—Handbooks, manuals, etc.

2. Medical jurisprudence—Australia—Handbooks, manuals, etc.
I. Kerridge, Ian H. II. Parker, Malcolm. III. Title.

344.94041

Publishing Editor: Sophie Kaliniecki

Publishing Services Manager: Helena Klijn
Edited by Rosemary Barry
Proofread by Pamela Dunne
Cover design by Design Animals
Internal design and typesetting by Pindar New Zealand (Egan Reid), Auckland
Index by Puddingburn
Printed by Ligare

Printed using vegetable-based inks on paper manufactured from sustainable forests.

 Foreword
This is a very practical book. It collects a greater number of the
laws that are relevant to medical practitioners and healthcare
workers throughout Australia. What I like most about the book is:
• the very clear presentation of the material
• the simple explanations for the lay reader on how to access and
understand the sources of law
• the presentation of legal topics likely to arise in ordinary
healthcare practice
• the extracts from the most important enacted law and case
decisions
• the illustrations from actual cases on how the law in the books
operates in practice, and
• the provision of typical instances and often-asked questions
that enliven the text and demonstrate its importance and
relevance to everyday medical and healthcare practice.
I am now the longest serving judicial officer in Australia. Although I
have had to wrestle with medico-legal questions since my first days
as an articled clerk in 1959, I must confess that I was not sure myself
of the answers to some of the questions raised by the authors in their
typical ‘Clinical cases’ [para 2.2] at the outset of this book.
If I was not sure – without plunging into the detail of the book
– of what the answers to these everyday questions would be, one
can hardly blame the ordinary doctor or healthcare worker for being
unfamiliar with the vast array of statutes, regulations, binding case
decisions and professional standards that apply in responding to the
countless ethical and legal quandaries that present themselves from
time to time. It is hard enough for a medical practitioner or other
healthcare worker to gain qualifications in their own discipline – and
to keep up to date with changes in their field of expertise – without
having to be aware of the complex detail of the law that applies to
their activities.

vii
 The Australian Medico–Legal Handbook

Nevertheless, in our system of law, as the High Court of Australia

recently affirmed, ignorance of the existence and content of a relevant
legal rule is rarely, if ever, an excuse (Ostrowski v Palmer (2003) 218
CLR 493). All of us are deemed to know the law and are expected to
abide by its requirements. This is why I applaud the initiative of the
authors in collecting, in a readily digestible and well-presented format,
the basic laws that govern the work of the medical and healthcare
professions. The authors deserve the gratitude of their colleagues;
but also of society, which imposes on us all a requirement to know
the law that few, if any, can truly fulfil.
Above all, this is a valuable book of reference. It is the kind of
text that institutions and busy practices should have on their shelves,
because the problems that are dealt with in these pages often arise
in urgent and unexpected circumstances. Medical practitioners and
healthcare workers cannot suddenly become experts about the detail
of the law. Yet often there will be no time to consult a lawyer, and the
obligations imposed by the law descend on the medical practitioner
and healthcare professional personally. It is for such situations that
this book has been written. Its clear presentation will help provide
a context. It will often afford answers that, at the very least, alert
those who are its audience to the main consideration they should be
aware of in responding to tricky situations.
Writing a work such as this presents its authors with serious
challenges. These include, in Australia, the complexity of the law
arising from our federal system of government. In healthcare matters,
many of the relevant statutes are made by the legislatures of the
states and territories. Few of them are uniform in their provisions for
operation throughout Australia. Unless there is a federal or uniform
state law, there is no escaping examination of the intricate differences
that are to be found in the enacted laws of the several jurisdictions
of this country, collected and described here.
To this layer of complexity must be added several others. They
include the significant quandaries for medical and healthcare
practice presented by various advances in technology (such as
tissue transplantation, in-vitro fertilisation and life-saving drugs and
equipment that were not available just a few years ago). Advances
in biotechnology and nanotechnology present still further puzzles
upon which the enacted law is often silent.
In our legal system there is never, ultimately, a gap in the law. As
the decisions of the High Court of Australia on wrongful conception,

viii
 Foreword

wrongful birth and so-called ‘wrongful life’ demonstrate [para 15.5.4],

in default of parliamentary legislation, the judges themselves must
develop and express the governing principles of the common law.
Keeping up with the technology is therefore not enough. As this
book shows, it is necessary also to keep up with the consequent
developments in the law.
Another layer of complexity, not wholly unconnected with the
last, lies in contemporary changes in social attitudes and community
expectations. These are illustrated in this book by the sections on
abortion and artificial conception. But they are woven through
virtually all of the topics that are treated here. Being connected
with the basal questions of human existence – from the moment of
conception and birth to death – this book deals with subjects upon
which people often feel very strongly. It would be best to have a
lawyer by one’s side as a guide and good companion when walking
through the minefield of law and regulation. However, if this is not
feasible (or is too expensive), this book is offered as a companion
and as a guide, at least to the main contours of the minefield.
Laws in Australia are constantly changing. This book is right
up to date. For example, it contains reference to the decision of
the High Court in 2006 in the WorkChoices case. The ever-present
advance of technology will bring more changes. So will developing
social attitudes; for instance, on the healthcare incidents of same-sex
relationships [para 15.3.4]. Faced with a serious legal problem in
a medical or healthcare practice, there is no alternative but to seek
expert, professional legal advice. However, the authors of this book
have provided a good starting point for an understanding by the
Australian medical and healthcare professions of the laws that daily
govern their activities. It may be hoped that the arrival of this book
will increase their dialogue with the legal profession and promote
understanding within all the relevant disciplines of the quandaries
and dilemmas which they must daily face.

The Hon Justice Michael Kirby AC CMG

Justice of the High Court of Australia
High Court, Canberra
1 October 2007

ix
 Preface
This book attempts to clearly and concisely explain how the law
influences medical practice in Australia. This task is, in many respects,
like an exercise in cryptobiology, the science of discovering and
characterising strange and wondrous beasts. Law is a many-limbed
creature that is difficult to describe and whose past is shrouded in
mystery. It is a creature that changes shape in different environments
and evolves in response to social, political, medical, scientific and
technological developments. No doubt, for many health professionals,
the law is a monster to be feared. We therefore aimed to demythologise
and clarify the law, and to help health professionals understand it and
appreciate it a little better, particularly in relation to their specific
areas of practice.
No book like this can be written without help from various
quarters. We thank the ever-patient staff of Elsevier, in particular
Suzanne Hall, Sophie Kaliniecki, Mae Boadle and Sam Bensch.
We (particularly Cameron) tested them beyond the limits of human
patience. Our thanks also go to Justice Kirby, not only for honouring
us with his Foreword, but also for giving us the inspiration to continue
to delve into the relationships between law and health.
Cameron would like to thank his family, Nerida, Max, Hannah
and Beth, as well as Anthony Hall and Dave Upcroft, for keeping his
sanity intact while his house was rebuilt during writing. He would
also like to thank his work colleagues, in particular Ros Croucher,
Denise Meyerson, Peter Radan, Lawrence McNamara, George
Tomossy and Kate McLoughlin.
Ian would like to thank Niamh and Gabriel for their joy, and his
colleagues at the Centre for Values, Ethics and the Law in Medicine
and the Haematology Department at Westmead Hospital for their
robust criticism, intellectual stimulation and support.
Malcolm would like to thank Wendy for her continuing support
in the face of the increasing gap between love of their fields and the

xi
 The Australian Medico–Legal Handbook

enjoyment of participating in projects like this, and the dwindling

time available to academics for the more creative aspects of their
vocation.
Finally, we would like to thank our friend and colleague, John
McPhee. John is a pioneer in Australian health law, and has done more
than any other to bring issues of health, law and ethics to light for
academics, practitioners and the general community. John originated
the idea for this text and wrote a number of draft chapters before,
sadly, having to withdraw from the project. We hope we have done
justice to his vision for this book.
The law is current to 1 May 2007.

Cameron, Ian & Malcolm

Sydney and Brisbane, May 2007

xii
 About the authors
Cameron Stewart
Cameron is Associate Professor of Law in the Department of Law at
Macquarie University, where he teaches equity and trusts, property
law, and health law and ethics. He has degrees in law, legal practice
and jurisprudence, and his doctorate was concerned with the legal
aspects of end-of-life decision-making. He has worked for the
Supreme Court of NSW and in commercial legal practice, and
has published in national and international journals on issues of
legal philosophy, health law, advance care planning, administrative
law and end-of-life issues. His work has been cited in the judgments
of the Australian High Court, the Full Court of Appeals of South
Africa and the Canadian Supreme Court. Cameron’s current research
interests lie in the legal regulation of end-of-life decisions, the
impact of administrative law on health care, elder law, human tissue
regulation, guardianship law and the regulation of pharmaceutical
advertising.

Ian Kerridge
Ian is Director and Associate Professor in Bioethics at the Centre
for Values, Ethics and the Law in Medicine at the University of
Sydney, and staff haematologist/bone marrow transplant physician at
Westmead Hospital, Sydney. Ian trained in medicine at the University
of Newcastle, philosophy at the Universities of Sydney, Newcastle
and Cambridge, and bone marrow transplantation at the Royal Free
Hospital in London. He has published over 80 papers in peer-reviewed
journals in ethics and medicine and is the author of three textbooks,
most recently Ethics and law for the health professions (Federation
Press 2005). His current research interests include the philosophy
of medicine, stem cells research and tissue engineering, end-of-
life care, the experience of illness and survival after bone marrow
transplantation, quality of life in patients with myeloma and ovarian

xiii
 The Australian Medico–Legal Handbook

cancer, umbilical cord blood transplantation, oocyte donation, clinical

ethics and the pharmaceutical industry.
Malcolm Parker
Malcolm is Associate Professor of Medical Ethics in the School of
Medicine, University of Queensland, and teaches medical ethics, law
and professional issues in the MBBS program. He has qualifications in
medicine, philosophy and health law, and has been in general practice
for 30 years. He has published in national and international peer-
reviewed journals in philosophy of medicine, bioethics, medical ethics,
health law and medical education. His current research interests are in
bioethical methodology (principlism and fundamentalism; empirical
ethics), health law (medical negligence; competence; regulation
of complementary medicine), medical education (assessment of
professionalism), philosophy of medicine (evidence-based medicine
and clinical judgment; end-of-life issues) and bioethics of reproduction
(prenatal testing; posthumous conception).

Acknowledgements
All [Commonwealth] legislative material herein is reproduced by
permission but does not purport to be the official or authorised version.
It is subject to Commonwealth of Australia copyright.

Extracts from Victorian legislation are reproduced with the permission

of the Crown in right of the State of Victoria, Australia. The State of
Victoria accepts no responsibility for the accuracy and completeness
of any legislation contained in this publication.

Western Australian legislation is reproduced by permission of the

copyright owner, the State of Western Australia, but such legislation
does not purport to be the official or authorised version.

In respect of all other quoted legislation, the publisher and authors

acknowledge the kind permissions granted by the relevant state
governments.

xiv
 Reviewers
Dr Hugh P Aders MB, BS, FRACP
Senior Medical Adviser, United Medical Protection
Kim Forrester RN, BA, LLB, LLM(adv), PhD
Barrister-at-law
Dr Andrew W Gill BM, FRACP
Neonatologist, Women’s and Infants’ Health Service, King
Edward Memorial Hospital, Subiaco WA
Michael Lowe BMed, FRACP
Clinical Dean, Northern Territory Clinical School, Flinders
University, Darwin
Professor Colin Thomson BA, LLM
Faculty of Law, University of Wollongong

xv
 CHAPTER 1

How to use this handbook

1.1 About the handbook
[1.1.1] How should I use this handbook? The purpose of this
handbook is to provide you with quick access to legal information on
particular issues affecting medical practice. The amount of regulation
affecting legal practice has grown in Australia in recent times, and
the complexity of that regulation has also increased. This handbook
should be used like a roadmap of the current regulatory frameworks
at the federal, state and territory levels.
We have organised the handbook as a series of questions that
might be asked by a health professional, and answers that might be
given by a lawyer. The answers go through the relevant laws and other
information, and may provide references to other sources. Throughout
the handbook important pieces of information are highlighted, and
case examples illustrate the law at work.
We have tried to make the handbook easy to use as a legal
resource in clinical settings where there is no time to read through a
textbook, or access the internet, and where questions are determined
by practical concerns.
Each question and answer has a paragraph number. The paragraph
numbers are extensively cross-referenced to other parts of the hand-
book. Tables have the same number as the paragraph they relate to.
Newly introduced technical terms are italicised. Many of these
are also defined in the glossary.

[1.1.2] Is there information this handbook does not cover? Yes.

The handbook is not a substitute for specific legal advice. While it
can give you an introduction to the law, and a guide to Australian
law in specific clinical situations, it cannot provide solutions to
complex legal problems. While it seeks to cover all relevant law,
this has not always been possible. Furthermore, the law can change
rapidly. Every attempt, however, has been made to provide accurate

1
[1.2.1] The Australian Medico–Legal Handbook

and up-to-date information and, where possible, references to other

sources of information.
1.2 Legal referencing
[1.2.1] What is legal referencing? In this handbook there are
many references to cases, legislation and other legal sources. Legal
referencing is a style used by lawyers to refer to cases, legislation and
regulations. It is often referred to as citation. There are many forms
of legal referencing, just as there are many forms of referencing in
the health disciplines. In Australia, the most commonly used system
is in the Australian guide to legal citation.

The Australian guide to legal citation can be downloaded from the

University of Melbourne’s Law School website (mulr.law.unimelb.
edu.au/aglc.asp).
!

[1.2.2] How are reported cases referenced? Reported cases are

referenced by the name of the parties, the year of the decision, the
volume of the reporting series, an abbreviation of the name of the
reporting series, and the page where the judgment can be found in
the volume.
For example, Rogers v Whitaker (1992) 175 CLR 479 means that
the case involved the parties Rogers and Whitaker, the decision was
handed down in 1992 and the report can be found in volume 175 of
the Commonwealth Law Reports at page 479.
Judges’ names are followed by an abbreviation indicating their
position; for example, ‘Kirby J’ means Justice Kirby, while ‘Gleeson
CJ’ means Chief Justice Gleeson.

Cases reported on the internet

Cases reported on the internet do not have volumes or page numbers.
The High Court of Australia has approved of a method of citation
called medium neutral citation whereby the name of the case is given
in square brackets, and the judgment itself is given a number. Each
paragraph is also given a number for ease of reference.
For example, Rogers v Whitaker [1992] HCA 58 at [25] means
that the case involved the parties Rogers and Whitaker, the decision
was handed down in 1992, and it was the 58th judgment handed

2
 How to use this handbook [1.3.2]

down by the High Court of Australia in 1992. The words ‘at [25]’
are an instruction to read paragraph 25.

[1.2.3] How is legislation referenced? Legislation is referred to

by its short name, the year it was passed by parliament and the
jurisdiction from which it comes; for example, Emergency Medical
Operations Act 1992 (NT).
A reference to a section in an Act is given by using an ‘s’ before
the section number; for example, Emergency Medical Operations
Act 1992 (NT) s 3(1) is a reference to section 3 of the Act. The (1)
indicates that it is the first subsection of section 3 that is of direct
relevance.

1.3 Law on the internet

[1.3.1] Where can I find cases on the internet? There are now
numerous sources of case law on the internet. Some of these are
listed in table 1.3.1.

TABLE 1.3.1 Case law on the internet

all Australian jurisdictions www.austlii.edu.au
Cth www.comlaw.gov.au
ACT www.courts.act.gov.au/supreme/default.asp
NSW www.lawlink.nsw.gov.au/
NT www.nt.gov.au/ntsc/nscdec_list.htm
Qld www.courts.qld.gov.au/qjudgment/default.htm
SA www.courts.sa.gov.au/judgments/index.html
Tas www.courts.tas.gov.au/decisions

[1.3.2] Where can I find legislation on the internet? Legislation,

including regulations, can be found at the websites listed in table
1.3.2.

TABLE 1.3.2 Legislation on the internet

all Australian jurisdictions www.austlii.edu.au
Cth www.comlaw.gov.au
ACT www.legislation.act.gov.au
NSW www.legislation.nsw.gov.au
NT www.nt.gov.au/dcm/legislation/current.shtml
=
3
 [1.3.2] The Australian Medico–Legal Handbook

= TABLE 1.3.2 Legislation on the internet

Qld www.legislation.qld.gov.au/OQPChome.htm
SA www.parliament.sa.gov.au/dbsearch/legsearch.
htm
Tas www.thelaw.tas.gov.au/index.w3p
Vic www.dms.dpc.vic.gov.au/.
WA www.slp.wa.gov.au/statutes/swans.nsf/

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapter 5
Melbourne University Law Review Association, Australian guide to
legal citation (2nd edn, 2002) MULRA, Melbourne

4
 CHAPTER 2

Recognising legal questions in

clinical practice
2.1 Ethics and law in clinical practice
[2.1.1] Why is it important to identify legal issues that arise in
clinical practice? Doctors and medical students confront ethical and
legal issues in clinical practice every day. Many of these never become
the focus of attention because they are dealt with unconsciously, and
because, for the most part, a doctor practising good medicine will be
acting morally and within the law. But this cannot be assumed. Doctors
cannot intuitively know how to respond in all clinical situations and
may not be aware of relevant law, particularly in complex areas of
practice and in areas where both the medical science and the regulatory
environment are developing rapidly.
It is also increasingly expected that doctors should be able to
explain and justify their decisions to their patients, other health
professionals, the media, regulators and, in some situations, the
courts. To do this, doctors need to be both clinically competent and
ethically sensitive, and to have an understanding of the law.
While many situations that raise legal and ethical concerns can
be quickly resolved by reference to the relevant law, in other, more
complex cases, such as where duties to different parties conflict,
more explicit and detailed examination is needed to ensure that
all relevant perspectives are considered and all possible responses
critiqued. This requires the doctor to:
• recognise that the clinical situation raises legal issues
• identify relevant legal and professional guidance, and
• incorporate an understanding of the law into a robust and
comprehensive examination of the clinical situation that also
takes account of the patient’s viewpoint and relevant ethical
insights.

5
[2.1.2] The Australian Medico–Legal Handbook

[2.1.2] What is the relationship between ethics and law in

medicine? Every clinical issue, from the most complex to the simplest,
ultimately has some relationship to ethics (moral philosophy) and
law. Whether the clinician is responding to a patient’s request for
withdrawal of treatment, considering what is in the best interests
of a child, or deciding how much information to give a patient,
there is an obligation to identify and reflect upon relevant law and
moral norms. Medicine, law and ethics are inextricably intertwined,
and each influences the others. As Bernard Dickens has noted in
relation to the laws surrounding assisted reproduction, ‘law frames
the setting within which law is voluntarily obeyed and respected as
an expression of the values and aspirations of the society in which
it applies’ (Dickens, 1997). It is important, therefore, for clinicians
to recognise that medical law has not emerged from a vacuum and
does not operate in isolation, and that cases that raise issues of legal
significance invariably raise philosophical, political, cultural and
sociological issues as well (Morgan, 2001).
The relationship between medical law and these other disciplines,
or ways of thinking, is exceedingly complex. This is particularly
the case with ethics, as ethics both forms the basis of law and is
shaped or enriched by it. Ethics and law share many characteristics,
such as a commitment to reasoning, discretionary decision-making,
justification through logical argument and critical reflection; but they
also differ in important ways, particularly in relation to punishment
and legal sanction. In the end, at least in medicine, it is not possible to
ignore the relationship between ethics and law, as ethics is ultimately
concerned with ‘what ought or ought not to be done in the context
of medical practice’ (Gillon, 1985), relies upon a critical process
through which different (and sometimes conflicting) moral issues,
concerns, interests and priorities are analysed, and is informed by
a wide variety of perspectives and disciplines, including law, the
social sciences, theology, feminism and moral philosophy, that
are applied within particular cultural, political and legal contexts
(Kennedy, 1981).

[2.1.3] How are cases used to illustrate law in medical interactions?

Doctors do not need to be experts in philosophy or law to successfully
practise medicine. Nor is it necessary for them to give primacy to the
law, or frame their decision-making or clinical management around
the law. What is required is that doctors are able to see where a case

6
 Recognising legal questions in clinical practice [2.2.2]

raises legal issues, where legal guidance may be necessary, and that
the law constitutes one of the contexts of accountability in which
medicine is practised.
The hypothetical cases discussed in the next section give an
indication of how legal questions emerge from both the simplest and
the most complex clinical situations. A number of them are loosely
based on published legal cases; others are archetypes in the sense
that they are representative of many of the cases that trouble students
and health professionals.
Remember that the details of the answers to many of the legal
questions posed will depend on the jurisdiction in which the case
occurs.

2.2 Clinical cases

[2.2.1] What enquiries from a patient’s friends and relatives can be
answered? Melissa is a 31-year-old woman with cystic fibrosis who
has been admitted to hospital for treatment of an infective exacerba-
tion of her chronic lung disease. These occur two or three times each
year, and have recently been more severe and harder to shake off.
Melissa is single, but has recently begun a relationship. She has
a very loving and supportive family and a wide network of friends.
Whenever she is admitted, the ward receives frequent phone calls
from friends and family anxious to know how she is progressing
and desperate for reassurance that she is not developing respiratory
failure and is not at risk of dying.
• What information can be provided to carers or other third
parties about a patient? (see [16.4.10])
• Does the relationship between a patient and the person
making the enquiry about them affect the information that can
be given? (Can you tell a relative more than a friend?) (see
[16.4.10])
• Is a doctor obliged to get a patient’s express (oral or written)
consent before sharing information about them with other
doctors? (see [17.3.4])
• What are the legal consequences of breaching a patient’s
confidence without their consent? (see [16.4.11])

[2.2.2] Can a patient with a mental illness refuse life-saving treat-

ment? Graeme Rogers, aged 47, has been living in shared community
housing for people with mental illness for 28 years. His paranoid

7
[2.2.3] The Australian Medico–Legal Handbook

schizophrenia is generally controlled with antipsychotic medications,

but on around 10 occasions he has required inpatient psychiatric
care because of the risk of self-harm. He has attempted suicide three
times. When his symptoms are well controlled he remains distrustful
of doctors and of pharmacotherapy. He is estranged from his family,
and is not in a relationship.
Late one evening Graeme is admitted to the Emergency Department
with acute cholecystitis. He is advised by the on-call surgeon that
he needs an immediate cholecystectomy but refuses to consent to
surgery, saying that he would rather die than have an operation. He
also seeks reassurance that he will not be operated on without his
consent should he become unconscious.
• Can Graeme refuse surgery where the refusal may result in his
death? (see [6.1.9], [10.2.1], [10.2.2], [13.3.1])
• Is Graeme competent to make decisions about his care? (see
chapter 7)
• Is Graeme’s history of mental illness and attempted suicide
relevant in this situation? (see [7.1.3])
• Where patients are not sufficiently competent to make
decisions regarding their own care, who else may legally be
permitted to make such decisions? (see chapters 8 and 13)

[2.2.3] Can I prescribe contraception for a sexually active 14-

year-old? Karin is 14 and is attending your surgery for the first time
on her own. She has been a patient of yours since she was born, and
has been accompanied by her mother to all previous appointments.
She is a healthy, bright, confident and articulate girl who, to the best
of your knowledge, has not experienced any significant difficulties
at school or in her relationships with friends or family.
She would now like a prescription for the oral contraceptive pill,
as she is contemplating a sexual relationship with her 17-year-old
boyfriend and is determined not to fall pregnant. She tells you that
her boyfriend has assured her that he will use a condom, but while
she is satisfied that this will protect her from sexually transmitted
infections, she does not believe it to be a sufficiently effective
contraceptive. Karin also volunteers that she has not discussed this
with her parents, and has no intention of doing so. She seeks your
assurance that you will not reveal her confidences.
• When can children legally make decisions about their own
care? (see [9.2.1])

8
 Recognising legal questions in clinical practice [2.2.4]

• When can children legally begin sexual relationships? (see

[15.6.1])
• Is it relevant that Karin’s boyfriend is 17? (see [15.6.1])
• Should Karin’s parents be told? Can they be told without her
consent? (see [9.6.1])

[2.2.4] Who makes decisions for a patient who cannot make them
for herself? Marjory, aged 54, is a Scottish woman with end-stage
renal failure due to scleroderma, who has been on maintenance
haemodialysis for eight years. She has multiple co-morbidities,
many of them related to either her scleroderma or the complications
of dialysis, including ischaemic heart disease, severe hypertension,
malabsorption, osteoporosis, peripheral vascular disease, arthritis,
hypercholesterolaemia, ulcerative oesophagitis and pulmonary
fibrosis.
Her most recent complication is an infected arteriovenous fistula.
Because her fistula cannot be used, a temporary central venous line
is inserted. Unfortunately, during insertion she sustains a right-sided
pneumothorax. This, in turn, requires insertion of an intercostal
catheter, and admission to the intensive care unit for respiratory
support. The following day she develops pneumonia which, despite
empirical antibiotics, worsens over the next few days and leads to
the onset of respiratory failure.
Rather than have Marjory intubated and ventilated, her husband
Keith decides that she should be ‘allowed to die peacefully’. During
the last few days of her life he does not leave her side. While accepting
that her life is nearing its end he is also furious that a complication
related to a medical procedure is ‘ultimately the thing that caused
her death’.
• Should Marjory’s death be referred to the coroner? (see [10.1.3])
• Who may make decisions for adult patients if they are not
competent to make decisions regarding their own care? (see
chapters 8 and 11)
• Where surrogate decision-makers are in conflict, does the law
give any guidance as to whose views take precedence? (see [8.6.2])
• Does the law allow surrogate decision-makers to decide
against resuscitation? (see chapter 11)
• Does the law provide any guidance about what should be
taken into account when making decisions for non-competent
adults? (see chapter 11)

9
[2.2.5] The Australian Medico–Legal Handbook

[2.2.5] Who decides what is in the best interest of a child with a

life-threatening illness? Anthea is an eight-year-old girl who is the
type of child that everyone warms to. She is vivacious, imaginative,
warm and funny, and has eyes that sparkle. She also has acute
lymphoblastic leukaemia that has returned two years after she attained
a remission following initial chemotherapy.
You know that in this situation most children can still be cured
by bone marrow transplantation.
Anthea’s parents, Kayla and Greg, are separated and communicate
only where necessary in relation to her medical care. They are
both present at this consultation, and are both very distressed that
her leukaemia has returned. When you suggest that she needs
chemotherapy, Greg replies that this time they will not be having
chemotherapy, as last time it ‘almost killed her’ and, in any case,
it didn’t work. Instead, he says, they may try alternative therapies.
Kayla does not say anything.
• Can Anthea’s parents refuse life-saving therapy for her? (see
[9.4.2])
• Who can decide about a child’s treatment? (see [9.2.1], [9.3.1])
• What should be done when parents disagree about how their
child should be treated? (see [9.3.3])
• When can a child decide for themselves? (see [9.4.1])

[2.2.6] Can a patient who doesn’t want to know the risks of

treatment give valid consent? Garry is 43 and works as a shop
assistant in a large city department store. He is morbidly obese, and
is seeking gastric surgery to reduce his weight. He has tried all types
of diets and exercise regimens, and has never been able to sustain a
significant weight loss.
When you tell him about the evidence in relation to obesity
surgery and its risks and benefits he seems distracted, inattentive and
anxious to leave your surgery. He replies ‘OK, OK’ to everything
you say, and hurriedly signs the consent form without reading any
of the information you have given him. All he says is, ‘Look, I need
this op or I will die. And I have no choice but to trust you doc! It
will be fine.’
• What is required for consent to be legally valid? (see [6.2.1]–
[6.2.5])
• How much information must a patient be given to be adequately
informed from a legal point of view? (see [6.3.1]–[6.3.9])

10
 Recognising legal questions in clinical practice [2.2.8]

• Can a patient commence legal action against you if they have

signed a consent form? Does this provide legal protection to
the treating doctor? (see [6.1.4], [6.3.7])
• Can patients choose to be told nothing about the risks and
benefits of a particular therapy or procedure? (see [6.3.6])

[2.2.7] How are decisions made where a patient has an advance

directive? Hugh is HIV positive, but has had no illnesses related to
HIV apart from a seroconversion illness. Indeed, on antiretroviral
therapy he has remained asymptomatic for four years.
Following your first consultation with him he presents you
with a copy of his advance directive, which he prepared following
his diagnosis. In it he states that should he become incompetent at
any point in the future he would not want to be resuscitated, but
that should he develop other complications related to HIV, such as
lymphoma or central nervous system infections, he would like all
other intensive therapies, including chemotherapy, invasive surgery,
dialysis and intensive care unit admission. His directive is notarised
by his family solicitor.
• What is the legal status of an advance directive? (see [10.3.2]–
[10.3.4])
• Can advance directives indicate demands for therapy as well as
therapies that the person wishes to forgo? (see [10.3.5])
• Is it necessary for advance directives to be witnessed by a
solicitor? (see [10.3.4])
• Are there penalties for not complying with an advance
directive? (see [10.3.6])

[2.2.8] Can you selectively reveal medical information to a patient

(or hide it from them) at the family’s request? Samir is 82 and
the patriarch of an extended Lebanese Christian family. He has been
referred to the oncology clinic for investigation of a large pulmonary
mass. This seems very likely to be a lung cancer as he is a smoker,
and also has a history of tuberculosis as a young man.
Before you see him his son asks to speak to you. He asks you
not to tell Samir that he has, or may have, cancer, as this ‘would kill
him’. He also asks that all decisions regarding his father’s care be
left to him. He is keen that his father receives the most aggressive
therapy there is to offer.

11
[2.2.9] The Australian Medico–Legal Handbook

• Can a doctor knowingly withhold diagnostic or prognostic

information from a patient, at the request of either the patient
or the patient’s family? (see [6.3.5]–[6.3.6])

[2.2.9] Is off-label use of drugs permitted? Dr Theobold works

in a busy neurology unit in Sydney. He sees many patients with
degenerative brain disorders and Parkinson’s disease. Until recently,
few therapies were available for the treatment of these conditions.
Now, however, there appears to be hope that they may be more ame-
nable to treatment than first thought. Unfortunately the drugs are
very tightly regulated, and the clinical indications for prescribing
imposed by the pharmaceutical benefits scheme are extremely
specific. Over the past year Dr Theobold has been modifying infor-
mation about patients’ diagnoses and test results that he provides
to the pharmaceutical benefits scheme in order to gain access to
these drugs.
• Is off-label prescribing permitted? (see [18.6.1])
• Do I have to tell the patient that a drug is being used off-label?
(see [18.6.2])
• Could Dr Theobold be disciplined for giving misleading
information to authorities? (see [5.5.2])

[2.2.10] Must a doctor provide futile treatment to a patient with

a terminal illness? Patrick is 62 and has been diagnosed with widely
disseminated adenocarcinoma of unknown primary origin. It is
estimated that his life expectancy is in the order of days to weeks.
He is admitted with renal failure and hypercalcaemia. The doctors
caring for him suggest that there is little basis for dialysis or for
resuscitation in his situation (as the chances of survival till discharge
would be around one to four per cent) and that it would be ‘better’
and certainly ‘kinder and more dignified’ for him to receive palliative
care.
Patrick, however, sees things differently. He says that he has
always been a fighter and that if this disease kills him at the very
least he would like to ‘go down fighting’. He also says that he is
not afraid of pain. His family fully support his decision and tell you
that this is entirely consistent with his values and with the way he
has always lived his life.
• Are doctors obliged to offer care that they regard as futile?
(see [10.2.4])

12
 Recognising legal questions in clinical practice [2.2.10]

• When will courts review decisions to withhold treatment from

patients? (see [10.2.4])
References and further reading
Dickens B, ‘Ethical issues in health’ in F Shenfield & C Sureau (eds)
Ethical dilemmas in assisted reproduction (1997) Parthenon, NY,
p.77
Gillon R, Philosophical medical ethics (1985) Wiley, NY, p.2
Kennedy I, The unmasking of medicine (1981) Granada, London,
pp.8–9
Kerridge I, McPhee J, Jordens C & Clark G, ‘Moral frameworks in
health care: an introduction to ethics’, in I Freckelton &
K Petersen (eds) Disputes and dilemmas in health law (2006)
Federation Press, Sydney
Morgan D, Issues in medical law and ethics (2001) Cavendish,
London, p.5

13
 CHAPTER 3

The Australian legal system

3.1 Australian governments
[3.1.1] What systems of government do we have in Australia?
Australia is a federation of six former British colonies: New South
Wales, Queensland, South Australia, Tasmania, Victoria and Western
Australia. The Commonwealth of Australia was formed in 1901, after
peaceful devolution of power from the Imperial British parliament. All
vestiges of the power of the British parliament to change Australian
law were finally removed in 1986.
Both Australia and its states are constitutional monarchies. The
holder of the British crown also holds the crowns of Australia and
all its states. The functions of the crown are given to vice-regal
appointments: governors for the states, and a governor-general for
the Commonwealth. The governors and governor-general are not
democratically elected but are appointed by the British monarch on
advice from the head of the relevant government.
The Commonwealth and all the states have a Westminster-
model bicameral (‘two-housed’) legislature, with the exception of
Queensland, which has one legislative house. The executive arm of
government is not separate from the legislature. Australian govern-
ments employ a British cabinet-style of executive: see [3.1.2].
Power is shared between the federal governments and the states
under the Commonwealth of Australia Constitution Act 1901 (Cth).
Specific powers are granted to the federal government. Some exclusive
power is given to the federal government (such as the power to coin
money), but the vast majority of its powers are concurrent powers,
shared by the states. If there is conflict between a valid federal
law and a state law, the federal law prevails to the extent of the
inconsistency.
In addition to the states there are two significant territories, which
have self-government: the Australian Capital Territory (ACT) and
the Northern Territory. These territories have their own legislatures,

14
 The Australian legal system [3.1.2]

but they are subject to the power of the federal government, which
can override their legislation on any matter. For example, the federal
government was able to overturn the Northern Territory’s Rights
of the Terminally Ill Act 1995 by passing the Euthanasia Laws Act
1997, which took away the territory’s power to legalise voluntary
euthanasia.

[3.1.2] What is the separation of powers? The separation of

powers is a political principle that states that societies are safer if
the executive, legislative and judicial functions of government are
performed by separate arms of government, so that there are checks
and balances on power.
The executive arm of government is responsible for the control
of policies and directions in government. Because Australia is a
constitutional monarchy, the executive function is shared between
the queen’s vice-regal appointments (the governor-general, or the
governor in the states) and the ministers of the government in
power, in a body referred to as the executive council. As a matter of
parliamentary convention the governor-general and the governors
follow the advice of the leader of the government in parliament:
either the prime minister of Australia, or the premier of a state. It is
thus probably more accurate to describe the executive function as
being performed in Australia by the cabinets of the various Australian
parliaments. The cabinet is the group of high-ranking ministers who
decide the policy aims and objectives of the government.
The legislative function in Australia is performed by the federal
and state parliaments. In Australia, all members of parliament are
elected.
The judicial function in Australia is served primarily by courts,
although there is an increasing number of tribunals that act in a
semi-judicial manner.
In the federal jurisdiction there is a strict separation between the
legislative and judicial functions under the Australian Constitution.
However, the executive and legislative functions are not separated,
as members of the executive are chosen from the legislative arm.
In the states there is no constitutional requirement for a separation
of powers. Members of the executive are chosen from the legislative
arm, and it is possible for judicial functions to be taken over by the
parliaments, although this is rare.

15
[3.2.1] The Australian Medico–Legal Handbook

3.2 Indigenous Australians and the law

[3.2.1] Are indigenous Australians subject to federal and state
laws, or do they have the sovereignty to make their own laws?
Indigenous Australians have been in occupation of the landmass
now known as Australia for tens of thousands of years. At the
time of contact with European explorers and annexation under
British power, there were between 300,000 and 1 million indigenous
Australians. Indigenous Australians are now known primarily by
common language groups and geographic locations, including the
Koori in New South Wales and Victoria, the Murri in Queensland,
the Noongar in Western Australia, the Nunga and Anungu in South
Australia, Western Australia and the Northern Territory, and the
Palawah (or Pallawah) in Tasmania.
Within these groups there are further separations and divisions
along cultural and language divides. There are also several groupings
of peoples on islands in the Torres Strait between northern Australia
and Papua New Guinea.
None of the former British colonies, or the federal government,
ever entered into a treaty with indigenous Australians. As such there
is no recognition of their former sovereignty. Given the failure of the
legal systems to recognise the sovereignty of indigenous Australians,
no war was ever declared against them and the continent is treated at
law as having been peaceably settled (even though this is substantially
at odds with fact). According to international law, a settled colony is
subject to the laws of the colonising power. In the fledgling Australian
colonies this meant that the law was British law, as far as it could be
sensibly applied to colonial conditions. In law, indigenous Australians
were not recognised as Australian citizens until 1967.
There was no recognition of the pre-colonisation property rights
of indigenous peoples until 1992. Before that time Australia was
treated as a ‘terra nullius’, effectively a ‘no man’s land’. In Mabo v
The State of Queensland (1992) 175 CLR 1 the High Court rejected
the concept of terra nullius, and recognised that indigenous land rights
could survive, but only when they had not been extinguished by British
powers, colonial authorities or, later, Australian governments.
The Mabo case did not recognise the sovereignty of indigenous
Australians, who are therefore subject to the ordinary laws of Australia
and have no right to their own legal systems. Judges have sometimes
attempted to give limited recognition to indigenous legal practices
in the application of the common law. In some areas, indigenous

16
 The Australian legal system [3.3.2]

law may still be applied by the judge; for example, in punishments

(such as spearing) for serious offences, particularly harm to other
people.
While the Hawke labour government in the 1980s promised
to recognise some form of limited sovereignty via a treaty with
indigenous Australians, no such treaty has ever been entered into.

3.3 Sources of law

[3.3.1] Where do Australian laws come from? There are four
sources of law in Australia:
• the common law
• equity
• legislation, including delegated legislation
• international law.

[3.3.2] What is common law? The common law is a system of judge-

made law inherited from England and Wales. During the reign of
King Henry II (1154–89), royal courts were created to administer a
uniform system of laws. The administration of justice was centralised
in the King’s Council or Curia Regis, which consisted of high-ranking
landowners and nobles. The King’s Council was responsible for all
functions of government: executive, legislative and judicial.
Later King Edward I (Edward Longshanks, 1272–1307) split
the judicial functions of the King’s Council into three courts: the
Court of Common Pleas (dealing with civil actions), the Court of
King’s Bench (dealing with crimes) and the Exchequer (dealing with
taxation). Because these courts administered the law common to all
the English people they became known as the common law courts.
The judgments of these courts were recorded from very early
times, and it became their practice to follow their earlier decisions.
This practice became entrenched, and is known as the doctrine of
precedent: see [3.5.1].
The early popularity of the common law courts came from
their flexibility and their ability to provide effective remedies to
litigants. The primary remedies offered by common law were (and
are) monetary damages, as well as orders for the return of personal
property and land.
However, by the 14th century common law had become rigid,
and was unable to provide remedies for new and emerging social
and commercial relationships. Dissatisfaction with the common

17
[3.3.3] The Australian Medico–Legal Handbook

law system led to the emergence of the equitable jurisdiction: see

[3.3.3].
English common law was brought to Australia in 1788 with
the colonisation of New South Wales through the application of
the doctrine of reception, a common law doctrine to the effect that
when land is unoccupied, settlers can apply the laws of their country
of origin. Because Australia was treated as having been peaceably
settled, English law was therefore established, and sovereignty was
recognised in the British Crown: see [3.1.1].
Notionally, there is one common law for Australia, based on the
British law as adapted for Australian conditions over the last 220
years. Unlike the American states, Australian states and territories
do not have individual systems of common law.

[3.3.3] What is equity? Equity is a separate but equally important

system of judge-made law. The laws of equity emerged out of the
jurisdiction of the lord chancellor, a high-ranking court official
who acted as the ‘keeper of the king’s conscience’. During the 14th
century people dissatisfied with the common law system petitioned
the king directly to resolve disputes. The lord chancellor was often
asked to intervene on the king’s behalf.
In the early days of this jurisdiction the lord chancellor resolved
disputes according to principles of Christian fairness and equity –
undoubtedly a reflection of the fact that the early lord chancellors
were trained priests. However, as time went on lord chancellors
were appointed who were trained lawyers. This was particularly the
case after the English Civil War, when, under Lord Nottingham’s
chancellorship (1673–1682), the lord chancellor’s role became more
fixed and orderly, and the system of precedent was adopted.
The laws of equity are therefore characterised as being supple-
mentary to common law principles. Equity’s role is to reflect upon
the common law and, if the common law is deficient, to provide a
remedy when none may have been available.
Generally speaking, equitable principles are concerned with laws
about property, trusts, contract, family law and commercial relation-
ships (such as partnerships, corporations law and unconscionable
conduct). They have no role to play in the criminal law.

18
 The Australian legal system [3.3.6]

Parkinson (2003) has described equity as being concerned with:

• exploitation of vulnerability or weakness
• abuse of positions of trust or confidence
!
• insistence upon rights in circumstances that make such
insistence harsh or oppressive
• inequitable denial of obligations
• unjust retention of property.

Equity, like common law, was brought to Australia on the settlement

of New South Wales.

[3.3.4] What if common law principles and equitable principles

conflict? King James I decreed that in the case of a conflict between
common law and equitable principles, the equitable principle prevails.
This is still the case.

[3.3.5] Are common law and equity still separate? In the 19th
century, increasing problems with the efficacy of both common law
and equity led to a reform of court administration. During the 1870s the
courts of common law and equity were disbanded and a new, unified
court structure was created, called the Judicature Act system.
While the reforms created a unified court system, they did not
fuse the two bodies of law together. This effectively meant that judges
in the new system could call upon both common law and equitable
principles to resolve disputes, but they could not mix the two bodies
of law together by borrowing bits and pieces of both.
The Judicature Act reforms were accepted quickly in Australia,
except in New South Wales (which did not adopt them until 1970).
In Australia, judges are considered to have access to both common
law and equity, on the proviso that the two bodies of law remain
distinct. Nevertheless, it is possible that as the law develops further
reform will lead to a relaxation of this distinction.

[3.3.6] What is legislation? Legislation, sometimes called statutes,

Acts or parliamentary law, consists of the laws passed through the
parliamentary process. All Australian parliaments have adopted a
similar approach to the creation of legislation.

19
[3.3.7] The Australian Medico–Legal Handbook

In all Australian jurisdictions (except Queensland where there is

only one house of parliament) legislation must be passed by a
majority vote in both houses of parliament.
!

A draft statute that has not been approved by the parliament is

called a Bill. The Bill is introduced to the house and enacted by a
process of ‘reading speeches’, which is repeated in both houses. The
process consists of the ‘First Reading’ (where the text of the Bill
is introduced), the ‘Second Reading’ (where the members debate
its contents), and the ‘Third Reading’ (where the members vote on
whether they accept it). Once the Bill has been passed in one house
of parliament it is referred to the other house for the same process
of review (except in Queensland, where there is only one house in
the parliament).
On the approval of both houses, the Bill goes to the governor-
general (or the governor) for signature. Ordinarily, the Bill becomes
law (and is called an Act) at this point. However, some Bills have their
own process of enactment and do not become effective until a later
date, or until the government publishes a notice in the Government
Gazette.

Delegated legislation
Some legislation is delegated to such bodies as government departments
under the authority of an act of parliament. This legislation takes the
form of regulations, rules or by-laws, and it has the force of law. It
typically deals with matters of detail, and it means that these do not
have to be debated in parliament every time a change is needed.

[3.3.7] What is international law? International law is law that is

binding on nations in the international community. Nations ordinarily
become bound by international law when they sign agreements –
declarations, covenants and treaties – concerning norms of conduct.
International agreements signed by Australia do not become the law
of Australia unless the Australian government passes legislation to
bring the international agreement into the domestic legal sphere.

20
 The Australian legal system [3.4.2]

3.4 The court system in Australia

[3.4.1] How are courts organised in Australia? Each jurisdiction
in Australia has its own hierarchy of courts and avenues of appeal.
The High Court of Australia is the final court of appeal in all court
systems, hearing appeals from federal courts as well as state and
territory Supreme Courts. It has a bench of seven judges, but not all
judges are required to sit on all matters.
Appeals are not heard by the High Court as of right. The High
Court will only hear an appeal after a short hearing where parties
ask a small bench of judges (normally only two or three) for ‘spe-
cial leave to appeal’.

Appeals from the decisions of courts can (with some exceptions)

only be made when there is an error of law in the judgment. Once
a court has made a determination about the facts of a dispute, it
!
is not possible for higher courts to overturn those findings of fact.
Only errors made about the law can be appealed.

[3.4.2] What is the judicial hierarchy of the federal courts? The

lowest court in the federal hierarchy is the Federal Magistrates’
Court. It hears matters on family law, child support, administrative
law, bankruptcy, unlawful discrimination, consumer protection and
trade practices (claims up to $750,000), privacy, migration, copy-
right, industrial law and admiralty law
The Federal Court has a similar jurisdiction, except that it does
not deal with family law issues. Matters can be brought in the first
instance before a single judge. Appeals from the decision of that
judge can be made to the Full Court of the Federal Court.
The Family Court has jurisdiction over the dissolution of mar-
riage and decisions regarding children (whether their parents are
married or not). In the Family Court the decision of a single judge
can be appealed to the Full Court of the Family Court.
Appeals from both the Full Court of the Family Court and the Full
Court of the Federal Court can be made to the High Court. Matters
can also be brought straight to the High Court as it has an ‘original
jurisdiction’ as well as an appellate one, but this is rare.
Table 3.4.2 summarises the federal judicial structure.

21
[3.4.3] The Australian Medico–Legal Handbook

TABLE 3.4.2 The federal court hierarchy

• High Court Decisions bind all other courts
• Full Court of the Family Court Decisions do not bind the High
(family law matters) Court, but bind all lower courts
• Full Court of the Federal Court
(other federal law matters)
• Family Court (family law Decisions bind lower courts
matters)
• Federal Court (other federal law
matters)
• Federal Magistrates’ Court

[3.4.3] What is the judicial hierarchy of the state and territory

courts? In the states and territories, the High Court is again the
highest court of appeal. The lowest courts in the hierarchy are Mag-
istrates’ Courts (called Local Courts in New South Wales). These
courts hear most criminal law matters except those determined by
jury trials. They also decide whether more serious criminal charges
should proceed to trial before the higher courts.
Magistrates’ Courts also hear civil claims up to certain amounts
(for example, $20,000 in Tasmania and $60,000 in New South
Wales).
District Courts (called County Courts in Victoria) deal with
more serious crimes and civil claims of greater value (most District
Courts hear matters up to $250,000, although in New South Wales
the District Court can hear claims up to $750,000). Juries are used
extensively in criminal trials before District Courts. Juries can also
be used in civil cases in most jurisdictions, but they are not com-
monly employed. When they are, they are normally smaller than
a criminal jury (for example, four jurors hear civil matters in the
Queensland District Court).
The Supreme Court in each state and territory has unlimited
jurisdiction over criminal and civil matters.
When determinations made by magistrates, District Court judges
and single Supreme Court judges are appealed, these appeals often
go to the Courts of Appeal in each state and territory. In New South
Wales there are two separate appeal courts, one for civil and one for
criminal matters.
Appeals from Courts of Appeal go to the High Court.

22
 TABLE 3.4.3 The court hierarchy in the states and territories
ACT High Court of Court of Appeal ACT Supreme Court Magistrates’
and territories.

Australia Court
NSW High Court of Court of Appeal; NSW Supreme Court District Court Local Court
Australia Court of Criminal Appeal
NT High Court of Court of Appeal NT Supreme Court Magistrates’
Australia Court
Qld High Court of Court of Appeal Qld Supreme Court District Court Magistrates’
Australia Court

23
SA High Court of Full Court SA Supreme Court District Court Magistrates’
Australia Court
Tas High Court of Full Court Tas Supreme Court Magistrates’
Australia Court
The Australian legal system

Vic High Court of Court of Appeal Vic Supreme Court County Court Magistrates’
Australia Court
WA High Court of Court of Appeal WA Supreme Court District Court Magistrates’
Australia Court
Decisions bind all Decisions bind lower Decisions bind Decisions bind
other courts courts lower courts lower courts
Table 3.4.3 summarises the basic court structures in the states
[3.4.3]
[3.4.4] The Australian Medico–Legal Handbook

[3.4.4] How do coroner’s courts fit into the judicial hierarchy?

Coroners are based in state and territory jurisdictions.
The role of the coroner is ancient, having begun in England in
1194. The coroner’s primary role is to investigate unnatural, acci-
dental, violent or suspicious death. Coroners also investigate the
suspected deaths of missing persons, and fires and explosions. They
may hold inquests into these matters and may make findings that can
be used in other legal proceedings, such as criminal prosecutions.
Coroners’ findings may also be used to make changes to health and
safety practices.
Legislation dealing with the role of the coroner is discussed in
chapter 10.

[3.4.5] What role do tribunals play in the court hierarchy?

A tribunal is a semi-judicial body which ordinarily has power to
resolve disputes in a specifically regulated area. In the health arena
the most important tribunals are those that deal with subjects such
as guardianship, mental health and professional discipline. Tribunals
are increasing in number and importance, and are having a greater
impact on health practice than ever before.
Tribunals differ from courts in that they do not ordinarily operate
under the laws of evidence. They also have a limited jurisdiction,
from which they are not allowed to depart.
Appeals from tribunals are ordinarily made to single Supreme
Court judges, although in some states and territories there are
intermediate appeal tribunals, such as the Administrative Decisions
Tribunal in New South Wales which hears appeals from tribunals
such as the Guardianship Tribunal. Appeals can be made from these
bodies to the Supreme Court, but only when it is alleged that the
tribunal has made an error of law.

3.5 The doctrine of precedent

[3.5.1] What is the doctrine of precedent? The basis of the doctrine
of precedent is that a court should decide similar cases on similar legal
principles. This is also known as the principle of stare decisis.
The doctrine of precedent looks simple, but is often difficult to
apply in practice. The main difficulty is working out which parts
of an earlier judgment are applicable to a new situation. Over the
centuries, lawyers have tried to read cases with an eye to distilling
the key principle from them, which can then be applied to future

24
 The Australian legal system [3.6.2]

cases. This key principle is often referred to as the ratio decidendi

(literally, the ‘reason for the decision’). The ratio decidendi is that
part of the judgment that is binding on future decision-makers.
Parts of the judgment that are not relevant to the key principle
are referred to as obiter dicta. They may be useful and strongly
persuasive but, unlike the ratio, they are not binding.
The doctrine of precedent is also complicated by the hierarchy of
courts discussed above. The effect of the hierarchy can be summarised
as follows:
• the decisions of the High Court of Australia are binding on all
lower courts
• superior appellate courts (including the High Court, the Full
Federal Court, the Full Family Court and state courts of
appeal) can decline to follow their own previous decisions
(although they may be reluctant to do so)
• all the decisions of higher courts bind lower courts in the same
jurisdiction
• the decisions of lower courts do not bind higher courts
• decisions made in another jurisdiction are not binding, but they
may be highly persuasive.

3.6 Proof
[3.6.1] What system of proof is used in Australian courts? ‘Proof’
in law is a very different concept to that of proof in medicine. Proof
in law is established by evidence that is accepted as being true by the
trier of fact (normally a judge or panel of jurors). It is not scientifi-
cally validated (although it is often based on scientific testimony).
Australian courts adopt an adversarial system of proof. This
means that the process of discovering and presenting facts is left to
the disputing parties, not to the decision-maker. For example, judges
are forbidden to collect evidence in our system, and are limited to
examining the evidence that the parties present to the court.
The opposite of the adversarial system is the inquisitorial system,
which is used in many European systems (sometimes called civil law
or Roman law jurisdictions). In an inquisitorial system the decision-
maker can take an active role in collecting evidence, independently
from the disputing parties.

[3.6.2] What is the burden of proof? The burden of proof or onus

of proof involves the issue of who must prove alleged facts in a

25
[3.6.3] The Australian Medico–Legal Handbook

dispute. In the Australian system the burden of proof ordinarily falls

on the person bringing a claim to court. In civil matters the burden
of proof is on the plaintiff. In criminal matters the burden of proof
is on the prosecution, normally the Crown (that is, the state).

[3.6.3] What is the standard of proof? The standard of proof

relates to the level of evidence required to satisfy a decision-maker
that claims have been made out to a satisfactory level. In civil mat-
ters in Australia, the standard of proof is the balance of probabilities,
meaning that plaintiffs have to prove that their allegations are more
likely than not to be true.
In criminal matters the standard of proof is normally set much
higher at beyond reasonable doubt, which means that the prosecution
must satisfy the decision-maker that there is less than a reasonable
doubt that the accused committed the crime.

3.7 Human rights in Australia

[3.7.1] Does Australia have constitutionally protected human
rights? No Australian jurisdiction has a constitutionally entrenched
Bill of Rights. The framers of the Australian Constitution were not
convinced of the need for a comprehensive statement on rights, and
only a handful of human rights are mentioned in that document.
These are:
• voting rights
• rights to trial by jury for indictable federal offences
• rights to freedom of religion
• rights of citizens not to be discriminated against because they
are residents of any Australian state.
The general trend of interpretation of these rights, with the possible
exception of the discrimination provision, has seen them as being
fairly weak.
It is also worth noting that concerns about the influx of labourers
from the Asia–Pacific region led the framers of the Constitution to
grant rights to the federal government to make laws with respect
to race. There are arguments about whether that empowers the
government to make laws that are racially discriminatory, but it is
clear that the original intention of the framers was to preserve race-
based distinctions in law.
A number of economic and trade rights are also embodied in
the Australian Constitution, primarily encouraging free trade across

26
 The Australian legal system [3.7.2]

states, preventing civil conscription and providing for the acquisition

of property by the federal government on just terms. A right to
freedom of political communication has been implied from the text
of the Constitution.
In most states and territories there is no constitutional recognition
of human rights at all. The only exceptions are rights to just terms of
acquisition of property in the ACT and the Northern Territory, and a
right to freedom of religion and conscience in Tasmania, which can be
overridden by legislation on the basis of public order or morality.

[3.7.2] What human rights are recognised in Australian legislation?

Australia is a signatory to most of the international declarations and
conventions on human rights. However, international law does not
become the law of Australia until it is enacted in legislation.
At the federal level, there has been no general enactment of
the United Nations’ Declaration of Human Rights or its offshoots.
However, a number of statutes have been enacted prohibiting
discrimination on the grounds of race, sex, marital status, pregnancy,
family responsibility, age and disability. Rights to privacy in sexual
relationships between consenting adults have also been recognised
in legislation. Generally, privacy rights over personal information
have been created in a statutory scheme, which initially covered only
government agencies but which now also covers information held by
private individuals and corporations. The federal government has also
created a Human Rights and Equal Opportunity Commission, with
the function of promoting human rights in Australia and inquiring
into alleged breaches of human rights.
The Commonwealth statutes embodying these rights are:
• the Racial Discrimination Act 1975
• the Sex Discrimination Act 1984
• the Age Discrimination Act 2004
• the Disability Discrimination Act 1992
• the Human Rights (Sexual Conduct) Act 1994
• the Human Rights and Equal Opportunity Commission Act 1986.
Among the states and territories, only the ACT and Victoria have
legislative Bills of Rights (in the Human Right Act 2004 (ACT)
and the Charter of Human Rights and Responsibilities Act 2006
(Vic)).
While there are no general statements of human rights in the state
and territory jurisdictions, apart from the ACT and Victoria, particular

27
[3.7.2] The Australian Medico–Legal Handbook

human rights are protected by legislation. For example, New South

Wales, Tasmania and Victoria have legislative schemes of privacy
rights. These schemes relate to records held by government agen-
cies, and the laws tend to reflect concerns similar to those addressed
in the federal privacy regime mentioned in [3.7.1].
Most jurisdictions have also proscribed various forms of
discrimination.
State and territory legislation dealing with discrimination is
listed in table 3.7.2.

TABLE 3.7.2 Discrimination: legislation and grounds on which

it is unlawful
ACT Discrimination Prohibits discrimination on the basis of sex;
Act 1991 sexuality; transsexuality; relationship status;
status as a parent or carer; pregnancy;
breastfeeding; race; religious or political
conviction; disability; membership of an
association of employers or employees;
age; profession, trade, occupation or
calling; some types of criminal conviction;
association with, or relation to, a person
identified on the basis of any of the above
attributes
NSW Anti- Prohibits discrimination on the basis of race;
Discrimination sex; pregnancy; transgender status; marital
Act 1977 status; disability; carer responsibilities;
homosexuality; HIV/AIDS carrier status; age
NT Anti- Prohibits discrimination on the basis of
discrimination race; sex; sexuality; age; marital status;
Act 1992 pregnancy; parenthood; breastfeeding;
impairment; trade union or employer
association; religious belief or activity;
political opinion, affiliation or activity;
irrelevant medical record or irrelevant
criminal record
Qld Anti- Prohibits discrimination on the basis of sex;
Discrimination relationship status; pregnancy; parental
Act 1991 status; breastfeeding; age; race; impairment;
religious belief or activity; political belief or
activity; trade union activity; lawful sexual
activity; gender identity; sexuality; family
responsibilities; association with, or relation
to, a person identified on the basis of any of
the above attributes
=
28
 The Australian legal system [3.7.3]

= TABLE 3.7.2 Discrimination: legislation and grounds on which

it is unlawful
SA Equal Prohibits discrimination on the basis of sex;
Opportunity Act sexuality; marital status; pregnancy; race;
1984 impairment; age
Tas Anti- Prohibits discrimination on the basis of race;
Discrimination age; sexual orientation; lawful sexual activity;
Act 1998 gender; marital status; relationship status;
pregnancy; breastfeeding; parental status;
family responsibilities; disability; industrial
activity; political belief or affiliation; political
activity; religious belief or affiliation; religious
activity; irrelevant criminal record; irrelevant
medical record; association with a person
who has, or is believed to have, any of these
attributes
Vic Equal Prohibits discrimination on the basis of age;
Opportunity Act breastfeeding; gender identity; impairment;
1995 industrial activity; lawful sexual activity;
marital status; parental status or status as
a carer; physical features; political belief or
activity; pregnancy; race; religious belief or
activity; sex; sexual orientation; personal
association with a person who is identified
by reference to any of the above attributes
WA Equal Prohibits discrimination on the basis of
Opportunity Act sex; marital status; pregnancy; family
1984 responsibility; family status; sexual
orientation; race; religious or political
conviction; impairment; age; gender history

[3.7.3] Does the Australian common law protect human rights?

The Australian common law recognises a number of rights, sourced
in the British tradition and stemming from Magna Carta, the Petition
of Right 1627, the Bill of Rights 1689 and the Habeas Corpus Acts.
These rights mainly provide for security of the person and property,
and freedom from arbitrary arrest. There are also rights of procedural
fairness, rights against self-incrimination and rights to silence, and
freedom from double jeopardy and cross-examination. Privacy rights
have recently been recognised at common law, through the doctrine
of confidential information.
These rights are not superior to any legislative attempt to sub-
stantially abrogate or remove them. While it is still an open question
in constitutional law, it appears that there are no common law rights

29
[3.8.1] The Australian Medico–Legal Handbook

so fundamental that parliament cannot override them. For example,

the High Court has refused to invalidate state legislation for the
confiscation of property without just terms, where the property is
acquired on the grounds that it belonged to a person charged with a
serious offence (but not convicted).
Arguments in favour of a doctrine of fundamental legal equality
have also been unsuccessful.

3.8 Legislative powers over health

[3.8.1] What legislative powers do Australian governments have
over health matters? The federal government does not enjoy a
general power over health matters. Specific health-related powers
belonging to the federal government include those concerning
quarantine, pensions, health insurance, and pharmaceutical and health
benefits. The federal government also has far more fiscal power than
the states, and has the power to give grants to the states that are tied
to particular objectives.
The combination of these powers has resulted in a shared
regulatory framework, where the bulk of expenditure comes from
federal funds via agreements with the states. The federal government’s
main roles are:
• regulating the introduction of therapeutic goods and drugs
through the Therapeutic Goods Administration, which has the
role of assessing the safety and efficacy of health products
• subsidising drugs through the Pharmaceutical Benefits
Scheme, whereby drugs listed by the Pharmaceutical Benefits
Advisory Council can be obtained at much reduced rates, and
are available to some classes of patients free of charge
• providing advice about health matters and regulating health
and medical research
• providing universal health insurance to allow free access to
hospitals and doctors through Medicare.
The states’ roles primarily relate to:
• running of public hospitals
• registration and discipline of health professionals
• control of healthcare complaints systems
• guardianship of children and adults
• mental health
• public health law.

30
 The Australian legal system [3.8.1]

References and further reading

McMillan J, Commonwealth constitutional power over health (1992)
Consumers’ Health Forum of Australia, ACT
O’Neill N, Rice S & Douglas R, Retreat from injustice: human rights
law in Australia (2nd edn, 2005) Federation Press, Sydney
Parkinson P (ed) The principles of equity (2nd edn 2003) Lawbook
Co, Sydney
Williams G, Human rights under the Australian Constitution (1999)
OUP, Melbourne

Cases
Mabo v The State of Queensland (No 2) (1992) 175 CLR 1

31
 CHAPTER 4

Negligence and standards of care

4.1 Negligence
[4.1.1] What is negligence? A claim in negligence is a civil claim that
is successfully brought when one person, the tortfeasor or defendant,
breaches a duty of care owed to another person (usually referred
to as the plaintiff), and that breach causes harm to the plaintiff. In
Australian common law a successful claim of negligence can only
be brought when:
• the tortfeasor owed a duty of care to the plaintiff
• the duty was breached because the tortfeasor’s behaviour fell
below the standards required to satisfy the duty
• the breach caused the harm complained of
• the harm that resulted was not too remote from the breach, and
• there were no legal excuses (defences) available to excuse the
tortfeasor’s behaviour.

The plaintiff bears the responsibility for proving all of the elements
of negligence listed, except for the last. Defences must be proved
by the tortfeasor: see [3.6.1]–[3.6.3].
!
This chapter deals primarily with negligence in situations concerning
diagnosis and treatment. Issues concerning negligent advice are
discussed in chapter 6.

[4.1.2] Haven’t the laws of negligence changed? Yes. In the early

2000s there were growing concerns in some circles that liability
in negligence had increased to unsustainable levels. It was said by
some prominent groups, including groups of health professionals,
that negligence was being found unfairly and that payouts for claims
were too high. The situation has been referred to as a ‘litigation
crisis’. Concerns were inflamed by the provisional liquidation of a
prominent Australian medical insurance provider.

32
 Negligence and standards of care [4.2.1]

In fact, there was little evidence that there had been a substantial
increase in the number of claims made, or in the payouts awarded,
when the situation was assessed in the light of the increasing number
of medical interventions and the level of injuries caused by preventable
adverse events (Wright, 2006). While the cause of the insurance
crisis is still debated, it is arguable that the insurance industry was
experiencing pressure from other quarters. It was certainly the case
that for some medical specialty areas, such as obstetrics, neurosurgery
and orthopaedic surgery, indemnity premiums had reached very
high levels.
Nevertheless, in response to the calls for ‘reform’ the federal
government commissioned Justice David Ipp to inquire into and
report on how negligence claims could be discouraged. The Ipp Report
recommended a number of changes that have been implemented,
to varying degrees, in each state and territory. These changes are
discussed later in the chapter.

4.2 The duty of care

[4.2.1] When is a duty of care imposed? At common law a person
owes a duty of care when they can reasonably foresee that their
behaviour may harm another person. This is referred to as the test
of reasonable foreseeability or the neighbour principle.
Case example
The test of reasonable foreseeability was formulated in the case
of Donoghue v Stevenson [1932] AC 562. A woman was given a
ginger beer by her friend in an ice creamery. The ginger beer was
contaminated with a decomposing snail, which was not visible
through the opaque glass of the bottle. After drinking the ginger
beer the woman had an extremely bad case of gastroenteritis.
The manufacturer was found liable for the woman’s illness by the
House of Lords, even though she had no contractual relationship
with the manufacturer.
Lord Atkin formulated the test as follows:
The rule that you are to love your neighbour becomes in law, you
must not injure your neighbour; and the lawyer’s question, ‘who is
my neighbour?’ receives a restricted reply. You must take reasonable
care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be – persons who are so closely
and directly affected by my act that I ought reasonably to have them
in contemplation as being so affected when I am directing my mind to
the acts or omissions which are called into question.

33
[4.2.2] The Australian Medico–Legal Handbook

The problem with the reasonable foreseeability test is that it is very

broad. Many attempts have been made to refine the test, the most
notable of which was the concept of proximity championed by
Deane J of the High Court of Australia. He identified three types of
proximity that would give rise to a duty of care:
• physical proximity, where there is closeness in space and time
• circumstantial proximity, where circumstances give rise to the
closeness
• causal proximity, where there is a closeness between an act
and its consequences.
The High Court subsequently discarded proximity as the major
test for establishing a duty of care and returned to the reasonable
foreseeability test as part of an incremental approach that allows the
court to recognise new categories of duty, where these are analogous
to already recognised duties and where the public interest lies in
favour of recognising the new category.

[4.2.2] Do doctors owe a duty of care to their patients? Yes. The

doctor–patient relationship is a classic example of a relationship
involving a duty of care. Other health professionals also owe a duty
of care to their patients or clients.

[4.2.3] When do health professionals owe patients a duty of

care? Health professionals ordinarily owe a duty of care when the
therapeutic relationship commences. This may be with the first
consultation (in the case of GPs, for example), or it may be when a
specialist has been asked to become involved as part of a treatment
team.
Case example
In Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR
542, a patient with kyphoscoliosis and spina bifida was said to
have been owed a duty of care by a neurologist, even though the
neurologist had not yet physically seen the patient at the time of
her injury.
The patient had a large hairy naevus on her lower back. She
was admitted to hospital for corrective surgery of her spine and
for traction. The naevus raised the chance that the spinal tissue
had connected with surrounding tissue, increasing the chance
that traction would cause paraplegia. A neurologist had been
asked to see the patient regarding the traction, but had not done
so; instead he wrote that he would see her after traction. After

34
 Negligence and standards of care [4.2.6]

the traction was applied the patient became paralysed. A duty

was said to be owed by the neurologist as he had been asked to
examine the patient, and although he had not actually done so,
he had nevertheless indicated that he would treat her.

[4.2.4] Can health professionals owe duties to people who are

not their patients? Yes. Health professionals owe a duty of care to
those they can reasonably foresee will be injured by their actions
or omissions. There may be circumstances where the duty expands
to third parties who are not their patients. For example, courts have
recognised that health professionals may owe a duty of care to sexual
partners of their patients, even though the sexual partners are not
patients themselves.

Case example
In BT v Oei [1999] NSWSC 1082, a doctor was found to have
owed a duty of care to the sexual partner of his patient. The
doctor had negligently failed to diagnose that the patient had HIV.
The evidence suggested that had the HIV been diagnosed the
patient would have taken precautions against infecting his sexual
partner.
The court found that it was reasonably foreseeable that
the patient, if HIV positive, would transmit the virus to a sexual
partner, and that this imposed a duty of care on the doctor. The
duty – to offer an HIV test to the patient – was an indirect one.
Because such a test had not been offered the patient was left
undiagnosed, and infected his partner.

[4.2.5] Can health professionals owe duties of care to the unborn?

Yes. This is discussed in more detail in chapter 15.

[4.2.6] Do health professionals have a duty to attend emergencies?

Generally speaking, there is no common law duty to rescue. It has been
said by English courts that health professionals who are asked to attend
a sick person are not compelled to do so by law. However, one New
South Wales decision accepted that in the particular circumstances
of the case there was a duty of care to attend an emergency, at least
when the health professional was at work and on duty.

35
[4.2.6] The Australian Medico–Legal Handbook

Case example
In Lowns v Woods [1996] Aust Torts Reps 81-376, the court
considered the case of Patrick Woods, who was an epileptic.
When Patrick had a fit, his mother sent his brother to a nearby
ambulance station and his sister to the local GP, Dr Lowns. The
sister said that she told Dr Lowns about the emergency but that
he refused to come. Dr Lowns disputed this account and said
that he had not been contacted. He admitted that, if the sister’s
account was correct, he would have owed a duty to attend the
emergency, and said he would have actually attended. The trial
judge accepted the sister’s testimony over Dr Lowns’.
The trial judge found that Dr Lowns owed a duty to attend
and treat Patrick, and that his failure to do so increased the
duration of the fit and the brain damage that resulted. The New
South Wales Court of Appeal upheld the decision by a majority of
two to one.
The two majority judges used the now outmoded proximity
test to find a duty of care. They found that there was physical,
circumstantial and causal proximity that justified imposing a duty
of care on Dr Lowns. Importantly, Dr Lowns’ own admission of
the duty was a major factor in the finding. Justice Kirby also relied
on s 27 of the Medical Practitioners Act 1938 (NSW) (which has
since been repealed), which stated that it may be professional
misconduct for a medical practitioner not to attend an emergency.
It is significant that the doctor was in his surgery, yet
apparently unoccupied with other patients. Attending to Patrick
would not have caused undue interruption to his other duties.
Another important aspect of this case is that it only carries
definitive weight in New South Wales, where it occurred, although
given similar circumstances, the decision could possibly be
followed in other jurisdictions.

In all jurisdictions except Tasmania, health professionals cannot be

sued for negligence when they attend an emergency as a ‘good
Samaritan’. Health professionals who attend an emergency in
!
good faith and without expectation of payment or other reward
have complete immunity from civil liability. The only exceptions are
when the health professional attends under the influence of drugs
or alcohol, and where the emergency was caused by the health
professional.
In Tasmania the common law prevails, but holds rescuers to
a very low standard of care. The policy is to encourage rescuers
because of the social desirability of their actions. There are no
recorded cases of health professionals being sued in Australia for
voluntarily attending an emergency and providing substandard
care.

36
 Negligence and standards of care [4.3.1]

State and territory legislation dealing with rescuers is listed in table

4.2.6.

TABLE 4.2.6 Legislation relating to rescuers

ACT Civil Law (Wrongs) Act 2002 s 5
NSW Civil Liability Act 2002 ss 56, 57
NT Personal Injuries (Liabilities & Damages) Act 2005 s 8
Qld Law Reform Act 1995 s 16; Civil Liability Act 2003 s 26
SA Civil Liability Act 1936 s 74
Vic Wrongs Act 1958 s 31B
WA Civil Liability Act 2002 Pt 1D

4.3 Standards of care

[4.3.1] What is the standard of care required of health profes-
sionals? Standards of care are determined by the courts after taking
into account what a reasonable person would do in the circumstances
of the particular duty of care being examined (the reasonable person
test). In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason J
stated that the court must formulate the standard of care after
considering:
• the magnitude of the risk of harm
• the degree of the probability of its occurrence
• the expense, difficulty and inconvenience of taking action to
avoid the risk, and
• any other conflicting responsibilities that the defendant has.
This approach has been adopted in most jurisdictions as part of their
reforms following the Ipp Report.

A person’s professional qualifications will be taken into account

when assessing their conduct against the appropriate standard
of care. In that sense the test for health professionals will be a
!
reasonable doctor test, a reasonable nurse test, a reasonable
physiotherapist test and so on, depending on the tortfeasor’s
professional and educational attainments.

In England and Wales it has often been argued that doctors should be
given special protection in the formulation of the standard of care, on
the basis that, unlike other professionals, they need to engage in new
and experimental treatments without the fear of falling below a court-

37
[4.3.1] The Australian Medico–Legal Handbook

devised standard of care. This argument led the courts in England

and Wales to adopt the Bolam standard of medical negligence.
The Bolam standard was developed by McNair J in the case of
Bolam v Friern Barnet Hospital Management Committee [1957] 1
WLR 582. According to this standard a doctor will not be negligent
who acts in accordance with a practice accepted at the time as
proper by a responsible (or reasonable) body of medical opinion.
It does not matter that other doctors may have adopted a different
standard. As long as there is some support for the actions of the doctor
coming from a responsible body of other doctors, the court will not
be permitted to find that the doctor’s conduct has fallen below an
acceptable standard of care.
The Bolam standard was never popular in Australian courts,
because it was felt that in following it the court was abandoning its
role as the arbiter of professional standards. It was rejected by the
High Court in Rogers v Whitaker (1992) 175 CLR 479: see [6.3.2].
Medical opinion was still obviously of great weight in determining
standards. It was just not determinative of those standards.
Recent changes brought about by the Ipp reforms have now intro-
duced a modified Bolam standard into most Australian jurisdictions.
In these jurisdictions a health professional will not incur liability if it
can be established that they acted in a manner that was widely accepted
in Australia by peer professional opinion as competent professional
practice. The fact that there are different peer professional opinions
concerning a practice does not prevent any of those opinions being
relied on. Nor does the peer professional opinion have to be universally
accepted. The only exception is where the peer professional opinion
being relied on is irrational (in New South Wales, Queensland, South
Australia, Tasmania), unreasonable (in Victoria) or is so unreason-
able that no reasonable health professional would have adopted it
(in Western Australia).
State legislation setting out standards of care for health profes-
sionals is listed in table 4.3.1.

Case example
In what situations could a court find the opinions of a body of
medical practitioners to be irrational or unreasonable? In Bolitho
v City and Hackney Health Authority [1997] 4 All ER 771, a child
suffered brain damage and died after a severe respiratory arrest.
The treating doctor had failed to attend, and the child was not
intubated. While the doctor admitted that her failure to attend

38
 Negligence and standards of care [4.3.2]

was a breach of standards, she argued that she would not

have intubated anyway and that this decision would have been
supported by a responsible body of medical opinion.
The trial judge examined the evidence of both sides and
found that both expert witnesses represented a responsible body
of professional opinion. The action was dismissed because the
doctor could show that, had she attended, she would not have
intubated, and that this approach was supported by a responsible
body of medical opinion.
On appeal to the House of Lords, it was said that the court
would not find a practice acceptable merely because some other
doctors had given evidence that it was. The key was finding that
the opinion was responsible or reasonable, and this was a matter
for the court, not the profession. In most cases, expert evidence
supporting a doctor’s actions will be enough to demonstrate the
required reasonableness. However, in rare cases, a professional
opinion may not be capable of withstanding logical analysis. In
such sitations it will be open to the judge to find that the opinion is
not reasonable or responsible.
In the present case the trial judge had accepted the views of
the defendant’s expert as being reasonable. The House of Lords
refused to overturn that finding, and the appeal was dismissed.
It is this reasonableness exception that has essentially been
adopted by the Australian jurisdictions in their modified Bolam
rules.

TABLE 4.3.1 Legislation dealing with standards of care

NSW Civil Liability Act 2002 s 5O
Qld Civil Liability Act 2003 s 22
SA Civil Liability Act 1936 s 41
Tas Civil Liability Act 2002 s 22
Vic Wrongs Act 1958 s 59
WA Civil Liability Act 2002 s 5PB

[4.3.2] Is the standard of care for informing patients determined

in the same way as the standards required in diagnosis and treat-
ment? No. The Bolam standard is not applied to the duty to provide
for informed decision-making. The standards required for giving
information to patients depends on the test of materiality. Doctors are
required to provide information on material risks, and the question
of what is material depends on the patient as well as the medical
profession. This is discussed in detail in [6.3.1]–[6.3.9].

39
[4.3.3] The Australian Medico–Legal Handbook

[4.3.3] Are junior health professionals held to a lower standard

of care than more senior staff? The general common law position
is that inexperienced and newly qualified professionals are held to
the same standard of care as more experienced professionals (Skene,
2004: 224). In Wilsher v Essex Area Health Authority [1988] 1 All
ER 871, Lord Glidewell stated that

the law requires the trainee or learner to be judged by the same

standard as his more experienced colleagues. If it did not, inexperience
would frequently be urged as a defence to an action in professional
negligence.

Where does this leave students of the health professions? If a student

is asked to perform a task that they are not qualified to perform, they
should be supervised in a way that ensures appropriate standards,
or they should not be asked to perform the task. Supervisors have a
duty to make sure that there is appropriate supervision, and students
have a duty to refrain from doing things they are not qualified to do
without supervision. Once a person assumes a role the law holds
them to the standards of that role, even though they may not have
the appropriate training and qualifications for it.
The law does draw a distinction between specialists and ordinary
members of the profession. The professional qualifications and
training of specialists is said to take them into a higher standard of
care than the ordinary professional in that field. If a treatment is one
that can only be offered by a specialist, ordinary professionals may
decline to offer that treatment and refer the patient to a specialist
for the purpose. A health professional cannot be forced to provide a
treatment that they do not feel qualified to offer.
Case example
In Luck v Blamey & Assoc [2000] VSC 77, a woman sought a
court order to force her surgeon to provide a treatment for her
scleroderma. The surgeon refused, because he believed that
the treatment should be provided by a dermatologist. The court
refused to order the surgeon to provide the treatment.

4.4 Causation
[4.4.1] What is legal causation? The concept of legal causation is
used to determine whether a breach of a duty of care can be said to
have caused the damage that a plaintiff is complaining of. In March v

40
 Negligence and standards of care [4.4.2]

E & MH Stramare Pty Ltd (1991) 171 CLR 506, the High Court said
that legal causation was based on rules of common sense. A breach
of a legal norm should only be considered a cause of damage when
common sense says that it should be so regarded.
This generally requires the courts to consider two issues:
• factual causation, and
• the scope of liability.
Factual causation requires that there be some scientific link between
the breach and the cause of injury, so that the breach is a necessary
condition for the injury to have occurred. Normally this is discovered
by asking whether the injury would have occurred ‘but for’ the
breach. If the injury would not have occurred but for the breach, the
law assumes factual causation.
The inquiry into the scope of liability examines whether it is
appropriate for the injury to be considered as having been caused
by the breach. It is therefore a normative investigation, where the
judge has to ask whether or not, and why, responsibility for the harm
should be imposed on the negligent party.
Legal causation needs only to satisfy the civil standard of legal
proof, which is the balance of probabilities: see [3.6.3]. The burden
of proof lies on the plaintiff.

Case example
In Barnett v Chelsea and Kensington Hospital Management
Committee [1968] 1 All ER 1068, three men reported to the
hospital after being poisoned by arsenic. The casualty doctor on
call refused to see the men and sent them home. One of them
died. The casualty doctor was found to have breached his duty
of care. However, the medical evidence suggested that the man
would not have received an antidote in time to save his life, even if
the doctor had seen him. The breach of duty could not be said to
have caused his death.

[4.4.2] Can a breach be said to have caused an injury when it

decreased the likelihood of a treatment’s success? In many situa-
tions, particularly those involving a negligent failure to diagnose,
patients’ injuries are unclear. Even where there has been a clear
breach of duty, it may be difficult to say that a patient is put into
a worse position because of it. Rather, it may be that a treatment’s
chance of success was diminished because of the delay caused by
the breach. In such cases, plaintiffs might argue that they have lost

41
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a chance at a better outcome, and that this is a form of injury, rather

than the illness, disease or disability itself.
While the courts have recognised loss of chance claims in economic
situations, they have not always been happy with the idea that a loss
of a chance is a form of medical injury. In England the courts have
rejected claims for loss of chance. In the case of Gregg v Scott [2005]
2 AC 176, the House of Lords refused a claim for loss of chance
where a doctor negligently diagnosed a tumour as benign, with the
result that the plaintiff’s treatment was delayed for nine months, and
the chance of a ‘cure’ was reduced from roughly 42 per cent to 25
per cent. A majority of the court believed that a loss of chance was
not a genuine harm recognised by tort.
However, loss of chance claims have been recognised in
Australia.
Case example
In Rufo v Hoskings (2004) 61 NSWLR 678, the plaintiff claimed a
loss of chance due to negligent treatment of her systemic lupus
erythematosus. The plaintiff was treated with corticosteroids,
which led to osteoporosis and eventual microfractures in her
spine. She alleged that the failure to use the correct steroids and
‘steroid sparers’ in her treatment regime was negligent. It was
argued that the treatment actually administered represented a
less successful treatment regime, and that she lost the chance of
a better outcome because of it. The trial judge agreed with these
claims, and found that the loss of a chance at a better outcome
was an injury.
The plaintiff was successful on appeal to the New South
Wales Court of Appeal. Santow JA stated that:
the present claim can be framed in terms of losing the benefit …
of a superior treatment regime with better chance of circumventing
the risks of bone microfractures, while still curing the Lupus ... That
better chance was less than even, but still material. There could be
no question but that the better chance was a thing of value, even if its
quantification posed considerable difficulty [at 42].
Hodgson JA stated that:
That chance must be inherent in the circumstances, not merely
an artifact of the way evidence is presented in the case. Thus, if it
appears to be a plain fact as to whether treatment would or would not
have been successful, and the element of uncertainty arises merely
from different expert views, then the plaintiff will not be compensated
for the chance that one expert might be correct. On the other hand,
if it appears that the very best medical science can do is to say that
the treatment had a quantifiable chance of success, then in my

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 Negligence and standards of care [4.5.1]

opinion that can be treated as a valuable chance for the loss of which
a plaintiff can be compensated. As with other questions concerning
causation, a common sense approach should be taken to the
question of whether a valuable chance has been lost, or whether the
situation is rather one where one or other alternative would definitely
have occurred, and the only uncertainty is due to imperfections in the
evidence [at 10].
The plaintiff was compensated by an amount for her total
damages discounted to reflect the fact that the chance she had
lost was considerably less than 100 per cent.

[4.4.3] What is remoteness? Some injuries resulting from negligence

are so unexpected that the law does not impose liability for them.
These are referred to as cases of remoteness. The test for remoteness
asks:
• Did the breach of duty cause a reasonably foreseeable risk of
harm? and
• Did the actual injury that was suffered fall within the category
of a reasonably foreseeable risk of harm?
If both questions can be answered in the affirmative, the injury is
said to be not too remote.

Remoteness does not require the defendant to foresee the

exact injury that eventuated. It only requires that a reasonably
foreseeable risk of injury was created, and that the injury fell within
!
that risk.

4.5 Damages
[4.5.1] How are damages measured? Two kinds of damages are
recoverable at common law:
• damages for economic loss (sometimes called specific
damages), and
• damages for non-economic loss (sometimes referred to as
general damages).
Economic losses are quantifiable losses and expenses, such as medical
expenses, the cost of housing alterations to allow for a disability, and
lost income. Non-economic losses relate to harm that is not so easily
quantified, such as pain and suffering, disfigurement, loss of sexual
function, and anticipated loss of future income.
Damages for upset feelings and sorrow are not recoverable under
our system. Psychological injury can only be claimed where the

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[4.6.1] The Australian Medico–Legal Handbook

plaintiff is suffering from a recognisable psychiatric condition.

There are now significant reductions in the amount of damages
available in negligence cases due to changes under the Ipp reforms.
A detailed review of these changes is beyond the scope of this work.
In general terms, there are now caps on claims for lost income and
for non-economic losses, as well as a discounting of non-economic
losses when an injury is considered to be less severe than a ‘most
extreme case’.

4.6 Defences to negligence

[4.6.1] What defences are available to a claim of negligence? There
are many defences to a claim of negligence. The first is to disprove
the substantive elements of the claim; for example, by showing that
the defendant did not owe a duty of care. Another important defence
is that the limitation period has expired; that is, the time for lodging
the claim has passed. The limitation period is a time set by statute
within which a claim for injury can be made, and normally runs from
the time the injury is discovered. In most jurisdictions, plaintiffs
have three years within which to bring a claim. After that, the claim
is said to be statute-barred.
The two other main defences to a claim of negligence are:
• contributory negligence, and
• the voluntary assumption of risk.

[4.6.2] What is contributory negligence? Contributory negligence

is a partial defence available when a plaintiff can be said to have
contributed to their injury through conduct that has exacerbated the
injury or added to the causative elements. Damages will be reduced
in proportion to the degree of responsibility as determined by the
court. Where the contributory negligence is extremely high, courts
in the ACT, New South Wales, the Northern Territory, Queensland,
Tasmania, Victoria and Western Australia may reduce damages by
100 per cent. In some situations, for example where a plaintiff was
injured while intoxicated, legislation makes it a requirement that
contributory negligence be presumed. In some jurisdictions legislation
mandates that damages to an intoxicated plaintiff be automatically
reduced by at least 25 per cent.

44
 Negligence and standards of care [4.7.1]

Case example
In Kalokerinos v Burnet (1996) unreported, NSWCA, BC9600037,
a woman who successfully sued her doctor for failure to diagnose
cervical cancer had her damages reduced for failing to seek
attention for four months when she knew her vaginal bleeding
was dangerous.

[4.6.3] What is the voluntary assumption of risk? The law presumes

that no injury is done to someone who consents to the risk of that
injury (volenti non fit injuria). The plaintiff’s consent to a risk of
injury is a complete defence to an allegation of breach of duty of
care. The defence requires that the plaintiff had full knowledge of
the risk, and voluntarily accepted it.
Under the Ipp reforms a person is presumed to have knowledge
of ‘obvious’ risks, which are risks that are obvious to a reasonable
person in the plaintiff’s position.

4.7 Vicarious liability

[4.7.1] What is vicarious liability? Vicarious liability is the type
of liability imposed on employers for negligent behaviour of their
employees. It is based on the assumption that employers have control
of employees, and are therefore responsible for their wrongdoing.
Initially professional medical staff were not held to be the employees
of hospitals, because most hospitals were charitable institutions and
their staff were not ‘controlled’ by the hospital. By the 20th century
hospital administration had changed, and hospitals were found
vicariously liable for the actions of doctors, nurses and other health
professionals working in them.
Outside the hospital context, partners in medical practice may
be vicariously liable for one another. Partnerships and other private
healthcare providers are also responsible for their employees’
behaviour.

Case example
In Alexander v Heise [2001] NSWCA 422, the wife of a patient
who died from a brain aneurysm sued a medical receptionist
and her employer for not scheduling an earlier appointment for
the patient. The court found that the doctor was responsible for
the secretary’s actions in setting appointments, but it also found
that the secretary had acted in accordance with an appropriate
standard of care. The plaintiff had not expressed any urgency

45
[4.8.1] The Australian Medico–Legal Handbook

in requesting the appointment, and had not provided important

details that may have indicated the necessity for an early
appointment.

4.8 Open disclosure of medical error

[4.8.1] What is open disclosure? Open disclosure is an approach to
medical error whereby the patient is informed of any error that does
occur, its effects, and what the health professional will do to rectify it.
Open disclosure also means that healthcare organisations acknowledge
and apologise for errors, and encourages them to reassure patients
and their families that the organisation will learn from preventable
mistakes and prevent them from happening again.

For more information on open disclosure in Australia see the

website of the National Open Disclosure Consortium, which
manages the Open Disclosure Project, at www.nsh.nsw.gov.au/
!
teachresearch/cpiu/open_disclosure.shtml.

[4.8.2] Is open disclosure legally required? Yes. Patients should

be informed of any error that has made their condition worse. The
courts have described this as a duty of candour on health professionals
(Naylor v Preston Area Health Authority [1987] 2 All ER 353). The
duty of care requires that the patient be informed of errors, especially
in circumstances where the preventable injury will be made worse
without further treatment.
It has also been argued by Faunce and Bolsin (2005) that doctors
have a fiduciary duty to inform patients about medical errors: see
[5.3.1]. Fiduciary duties are special duties imposed by equity on
certain relationships where one person (the fiduciary) must act in
the best interests of the other (the beneficiary), even if it is to the
fiduciary’s detriment to do so. Many professional relationships
involve fiduciary duties, such as the relationship between a lawyer
and client, between partners in a business, or between a priest and
a member of their congregation. While it has been said that the
doctor–patient relationship is not generally a fiduciary relationship,
part of the relationship may involve fiduciary responsibilities. Faunce
and Bolsin argue that the duty to disclose medical error is one such
responsibility. At the time of writing, this argument had not been
tested by the courts.

46
 Negligence and standards of care [4.8.3]

Case example
Wighton v Arnott [2005] NSWSC 637 involved a patient who
had three operations to remove a lump in her shoulder. In the
third operation the doctor severed her accessory nerve, but he
neglected to inform her that this had happened. Because the
patient did not know of the injury she went for several months
without appropriate treatment, and she lost the opportunity to
repair the severed nerve. She suffered from various problems,
including a wasted arm and frozen shoulder. The patient alleged
that the failure to inform her of the severing of her nerve was a
breach of the doctor’s duty of care. The trial judge agreed.
Justice Studdert said:
What the exercise of due care required of the defendant was that he
take reasonable steps to determine whether it was the accessory
nerve which had been severed and that he alert the plaintiff as to what
had occurred [at 38].

[4.8.3] Are there other reasons for open disclosure? Yes. Some
professional codes of conduct make it a requirement to inform a
patient of a medical error. In New South Wales, for example, the Code
of Professional Conduct formulated under the Medical Practice Act
1992 contains the following:

2.5 If Things Go Wrong

Patients who complain about the care or treatment they have received
have a right to expect a prompt and appropriate response. You have
a professional responsibility to:
… act immediately to put matters right, if it is possible, if a patient
under your care has suffered serious harm, through misadventure or
for any other reason. You should explain fully to the patient what
has happened and the likely short and long-term effects. When
appropriate, you should offer an apology. If the patient lacks the
maturity to understand what has happened, you should explain the
situation honestly to those with parental responsibility for the child. If
the patient is cognitively impaired you should provide an explanation
to the patient’s parent, guardian, carer or person responsible.

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[4.9.1] The Australian Medico–Legal Handbook

4.9 Apologies
[4.9.1] Will I be found to have admitted negligence if I apologise?
Apologies are related to open disclosure. Apologies and expressions
of regret are not admissions of liability, and they cannot be used in
litigation as proof of negligence.
A meaningful apology may well satisfy a potential plaintiff, so
that they do not pursue a claim.
State and territory law dealing with apologies is listed in table
4.9.1.

TABLE 4.9.1 Legislation dealing with apologies

ACT Civil Law (Wrongs) Act 2002 Pt 2.3
NSW Civil Liability Act 2002 Pt 10
NT Personal Injuries (Liabilities & Damages) Act 2003 Pt 2 Div 2
Qld Civil Liability Act 2003 Ch 4 Pt 1
SA Civil Liability Act 1936 Pt 9 Div 12
Tas Civil Liability Act 2002 Pt 4
Vic Wrongs Act 1958 Pt IIC
WA Civil Liability Act 2002 Pt IE

References and further reading

AHMAC Legal Process Reform Group, Responding to the medical
indemnity crisis: an integrated reform package (2002) Australian
Health Ministers’ Advisory Council, Melbourne
Faunce T & Bolsin S, ‘Fiduciary disclosure of medical mistakes: the
duty to promptly notify patients of adverse health care events’
(2005) Journal of Law and Medicine 478
Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney,
chapter 9
Madden B & Cockburn T, ‘Duty to disclose medical error in
Australia’ (2005) 14 Health Law Bulletin 19
Parker M, ‘Reforming the law of medical negligence: solutions in
search of a problem’ (2003) 11 Torts Law Journal 136
Skene L, Law and medical practice: rights, duties, claims and
defences (2nd edn, 2004) LexisNexis, Sydney, chapter 7
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 6

48
 Negligence and standards of care [4.9.1]

Wright E, National trends in personal injury litigation: before and

after Ipp (2006) Justice Policy Research Centre, University of
Newcastle, Newcastle

Cases
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
Alexander v Heise [2001] NSWCA 422
Barnett v Chelsea and Kensington Hospital Management Committee
[1968] 1 All ER 1068
Bolam v Friern Barnet Hospital Management Committee [1957]
1 WLR 582
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771
BT v Oei [1999] NSWSC 1082
Donoghue v Stevenson [1932] AC 562
Gregg v Scott [2005] 2 AC 176
Kalokineros v Burnet (1966) unreported, NSWCA, BC9600037
Lowns v Woods [1996] Aust Torts Reps 81-376
Luck v Blamey & Assoc [2000] VSC 77
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Naylor v Preston Area Health Authority [1987] 2 All ER 353
Rogers v Whitaker (1992) 175 CLR 479
Rufo v Hoskings (2004) 61 NSWLR 678
Wighton v Arnott [2005] NSWSC 637
Wilsher v Essex Area Health Authority [1988] 1 All ER 871
Wyong Shire Council v Shirt (1980) 146 CLR 40

49
 CHAPTER 5

Aspects of the therapeutic

relationship
5.1 Non-tortious legal duties
[5.1.1] While most attention in health law is given to the law of tort,
other legal duties arise in the therapeutic relationship between health
professionals and patients. This chapter deals with some of the non-
tortious aspects of the therapeutic relationship. It focuses on:
• the contractual relationship between doctors and patients
• the Australian systems for healthcare complaints, and
• the systems of review of professional conduct.
5.2 Contractual relationships and health
professionals
[5.2.1] What is a contract? A contract is a legally binding agree-
ment. A contract creates a relationship between the parties to the
agreement, which requires them to act, or refrain from acting, in
certain ways for the life of the agreement.
In the healthcare context, contracts most commonly take the form
of an agreement by the healthcare professional to provide health
services for a fee. However, contracts can take a great variety of
forms, and they do not always require the payment of money to be
binding: see [5.2.3].
Generally speaking, patients and healthcare providers in private
settings are in a contractual relationship. In public settings (such as
public hospitals and clinics), patients and healthcare providers will
not be in a contractual relationship.

[5.2.2] What form should a contract take? Most people enter into
several contracts a day without even knowing it. The simple pur-
chase of a cup of coffee involves a contract entered into with very
little formality (and sometimes without any words being spoken).

50
 Aspects of the therapeutic relationship [5.2.3]

Contracts like this do not need to take a special form – they are re-
ferred to as informal contracts.
In contrast, some contracts are required by law to be in writing
to take full effect (for example, contracts for the sale of cars in some
jurisdictions). In some very specific situations (for example, the
transfer of interests in land), contracts must take the form of a deed,
a specially created instrument that has to be witnessed in front of a
lawyer. Such contracts are referred to as formal contracts.
Most healthcare contracts do not have to be in writing, and agree-
ments take place through conversations between health professionals
and patients (parol contracts). The problem with parol contracts is
that it can be difficult to be sure what was agreed to, especially if the
parties later disagree about what was expected of them.

[5.2.3] When is a contract formed? Under the common law, a number

of requirements must be met before a contract comes into being.

Intention to enter into a legal relationship

The law presumes in most cases that the parties to an agreement
mean that agreement to be legally binding. There are agreements
between close family members where the presumption is reversed,
and the parties must be able to show that a legally binding
agreement was intended. Apart from situations in which healthcare
professionals are treating family members, parties to a healthcare
agreement are presumed to have had an intention to enter into a
legal relationship.

Offer and acceptance

Contracts are formed at the point where, after negotiation, a final offer
has been made and that offer has been accepted. In the healthcare
context this most commonly occurs after the initial consenting
process, when the healthcare professional has given the patient
information about treatment options and the patient has agreed to
follow a particular course of action: see chapter 6.

Consideration
For a contract to be binding the parties must each provide consideration,
which is something of value to the other party. In most healthcare
agreements, consideration is payment by the patient and treatment
by the health professional.

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[5.2.4] The Australian Medico–Legal Handbook

However, consideration can take forms other than money, such

as a promise to act in particular way. The common law does not re-
quire the consideration to be adequate, in the sense of representing
a market value. All it requires is that the parties themselves have
determined that something of value is to pass between them.

Case example
Breen v Williams (1996) 186 CLR 71 involved a patient’s request
for medical records relating to procedures she had undergone
several years before in relation to her breast implants. The doctor
would only agree to release the medical records if he was given
an indemnification from any legal action. The patient refused to do
this, and argued that the doctor had a duty to provide the records
to her. One of the arguments for finding such a duty was that
the contract required the disclosure. In that context, Brennan CJ
discussed the nature of consideration in healthcare contracts. He
stated that:
The consideration for the undertaking may be either a payment, or
promise of payment, or reward or submission by the patient, or an
undertaking by the patient to submit to the treatment proposed [at 78].
Gummow J also discussed consideration, and indicated that
Medicare payments may constitute consideration. He stated that:
The relationship between medical practitioner and patient may
engage the law in various respects. Traditionally, there has been a
contractual relationship, the medical practitioner performing services
in consideration for fees payable by the patient. That established
pattern now may require adjustment to accommodate wholly or partly
state-operated or financed health schemes, established by statute.
The ‘bulk-billing‘ provisions of the Health Insurance Act 1973 (Cth) …
provide an example of this.

This case is discussed further below: see [5.2.4].

[5.2.4] What parts of the contract are binding? All contracts are
made up of terms, which set out the binding obligations of each
contracting party. Because most healthcare contracts are informal,
it can be difficult to discern what terms were actually agreed to.
A term can be an express term. This is a term that has been actually
discussed by the parties, for example, in their conversations regarding
the agreement, or has been put in writing. In a healthcare contract
express terms are often formed by conversations about consent. If
written information sheets are provided, these may also make up
some of the express terms of the contract.

52
 Aspects of the therapeutic relationship [5.2.5]

Many terms are not discussed, but are nevertheless a necessary

part of the contract. Think back to the example of buying a cup of
coffee. It would be unusual for the purchaser to ask whether the
coffee was fit for human consumption – this is assumed to be the
case. Such unspoken terms are referred to as implied terms. As the
example of the coffee shows, implied terms are often essential to
a contract, but may be so obvious that no-one thinks of expressing
them. The common law will still treat the contracting parties as being
bound by the implied terms.
In healthcare contracts the most commonly implied term is that the
doctor will exercise due care and skill when providing treatment.

Case example
In Breen v Williams (1996) 186 CLR 71 (see [5.2.3]), the patient
argued that there was an implied term in her contract that the
doctor would provide her with her medical records. Gaudron and
McHugh JJ discussed implied terms in healthcare contracts.
The doctor–patient relationship is contractual in origin. In general
terms, ‘(a) doctor offers a patient diagnosis, advice and treatment’, the
objectives of which are ‘the prolongation of life, the restoration of the
patient to full physical and mental health and the alleviation of pain’.
Given the informal nature of the relationship, however, a contract
between a doctor and a patient rarely contains many express terms.
Because that is so, the courts are obliged to formulate the rights and
obligations of the parties to the contract. As Lord Wilberforce has put
it, in cases where the parties to a contract have not attempted to spell
out all the terms of their contract, the function of the court is ‘simply
… to establish what the contract is, the parties not having themselves
fully stated the terms’. The court does so by implying terms in the
contract in accordance with established legal principles.
The patient’s argument was that there was an implied term that
the doctor would always act in her best interests, and that this
meant he must grant her access to her medical records. This
argument was rejected. The court recognised that the primary
implied term in the contract was that the doctor would exercise
reasonable care and skill in providing treatment. That term did not
extend to any right of access to the patient’s medical records.

[5.2.5] Are there other terms that the courts will imply into health-
care contracts? Yes. Some courts have recognised that there is an
implied contractual term of open disclosure, so that a health pro-
fessional must inform the patient if an error has occurred that leads
to, or exacerbates, a personal injury. This is discussed at [4.8.2].

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[5.2.6] The Australian Medico–Legal Handbook

Generally the courts are reluctant to imply terms into contracts,

and will only do so where it is necessary for the proper working of
the contract.

[5.2.6] What happens when there is a breach of contract? A

contract is said to have been breached if one of the parties fails
to carry out their obligations under it. If a very serious breach has
occurred the innocent party has the option of terminating the contract
and then suing for damages. For less serious breaches the option
of termination is not available, and the innocent party must seek
damages when the contract has been completed.
Damages are therefore the main common law remedy, and they
are calculated on the basis that the innocent party should be placed
in the situation they would have been in had the contract been
performed. In healthcare contracts the damages awarded for breach
of the implied term of reasonable care and skill are very similar to
those awarded in negligence cases.
The courts can also order other remedies where a breach of
contract has occurred. These include:
• an order that the contract be specifically performed when one
party is refusing to comply with their obligations
• an injunction, which is a court order that can be used to
prevent a threatened breach of contract.
Both of these are equitable remedies, and courts will insist that other
conditions are satisfied; for instance, that the innocent party has
behaved fairly (‘comes to the court with clean hands’).

[5.2.7] Are contractual duties overridden by other laws? No.

Contractual duties coexist with the duties owed in other areas like
tort law. To that extent disagreements between patients and health
professionals may give rise to several overlapping claims. But while
claims may overlap, a successful claimant will receive damages for
what they have lost, without double dipping.
Contract law has also been enhanced by numerous pieces of fair
trading legislation, which make it illegal for a person or corporation to
engage in misleading or deceptive conduct in the course of trade and
commerce. These provisions apply regardless of whether a contract
was properly formed. Claims under this legislation could potentially
be made in relation to healthcare practice. At the time of writing there
have been no major cases illustrating how this could be done.

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 Aspects of the therapeutic relationship [5.3.1]

Fair trading legislation in the Australian jurisdictions is listed

in table 5.2.7.

TABLE 5.2.7 Australian fair trading legislation

Cth Trade Practices Act 1974 s 52
ACT Fair Trading Act 1992 s 12
NSW Fair Trading Act 1987 s 42
NT Consumer Affairs & Fair Trading Act 1990 s 42
Qld Fair Trading Act 1989 s 38
SA Fair Trading Act 1987 s 56
Tas Fair Trading Act 1990 s 14
Vic Fair Trading Act 1999 s 9
WA Fair Trading Act 1987 s 10

5.3 Fiduciary duties

[5.3.1] What is a fiduciary duty? A fiduciary duty is an obligation
imposed by equity that requires the obliged person (the fiduciary) to
act in the interests of another person (the beneficiary). Fiduciary duties
are imposed in circumstances where the beneficiary is particularly
weak and vulnerable, and the fiduciary is required to protect the
beneficiary’s interests. Common fiduciary duties include obligations
of confidence, requirements to disclose conflicts of interest, and
special rules pertaining to receiving gifts.
Fiduciary duties can arise in many different professional and
social relationships, categorised either by a power imbalance that
makes it appropriate for special duties to be imposed on the more
powerful party, or by an obligation on one party to act as the other’s
representative or agent.
There are also types of relationship that equity recognises as
being wholly fiduciary in nature. The fiduciary must act in the
interests of the beneficiary in the performance of the obligations
pertaining to the relationship. Established fiduciary relationships
include guardian–ward, legal practitioner–client, director–company,
and priest–parishioner relationships.

Fiduciary duties can be owed by people outside traditionally

recognised fiduciary relationships. !
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[5.3.2] The Australian Medico–Legal Handbook

[5.3.2] Is the relationship between a doctor and a patient a

fiduciary relationship? No. But while the relationship is not wholly
fiduciary, there may be particular fiduciary duties owed in the doctor–
patient relationship.

Case example
In Breen v Williams (1996) 186 CLR 71 (see [5.2.3]), the patient
also tried to argue that the relationship between her and the doctor
was a fiduciary relationship and, on that basis, that the doctor
owed her a duty to provide access to her medical records. The
High Court was unanimously against imposing such a fiduciary
dimension to the doctor–patient relationship. Brennan CJ stated:
What is the nature of the doctor–patient relationship? Generally there
is no relationship of agency. But the relationship of doctor and patient
is one where the doctor acquires an ascendancy over the patient
and the patient is in a position of reposing trust in the doctor. Such
a relationship casts upon the doctor the onus of proving that any gift
received from the patient was given free from the influence that the
relationship produces. But in this case the doctor has received no gift;
he has taken no step to procure an advantage for himself. Nor has he
taken any advantage of his ascendancy over his patient or of her trust
in him. His refusal to give access to his records does not deny his
patient a benefit to which the patient was entitled either by reason of
his position as the appellant’s medical adviser and provider of medical
treatment or by reason of the trust she reposed in him to provide
medical treatment … There is simply no fiduciary relationship which
gives rise to a duty to give access to or to permit the copying of the
respondent’s records. There is no relevant subject matter over which
the respondent’s fiduciary duty extended.
Gaudron and McHugh JJ likewise found that:
Some aspects of the doctor–patient relationship exhibit characteristics
that courts have used to find a fiduciary relationship. For example,
from the most mundane consultation with a general practitioner
through to the most complicated surgical procedure by a specialist
surgeon, a patient is invariably dependent upon the advice and
treatment of his or her doctor. Patients also invariably confide
intimate personal details about themselves to their doctors. In some
circumstances, the dependency of the patient or the provision of
confidential information may make the relationship between a doctor
and patient fiduciary in nature. But that does not mean that their
relationship would be fiduciary for all purposes.

What fiduciary duties might be owed in the absence of an overarching

fiduciary relationship between doctor and patient? The primary
duties appear to be:

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 Aspects of the therapeutic relationship [5.4.2]

• keeping the patient’s medical information confidential: see

chapter 17
• not accepting gifts from patients (even when they are given
in a will), unless it can be shown that they were given freely
(equity will presume that any gift was given under undue
influence, and the onus of disproving that assertion lies with
the health professional)
• not engaging in a sexual relationship with a patient: see
[5.5.3]. While there are no Australian cases on breach of
fiduciary duty involving a doctor–patient sexual relationship,
Skene believes that such a relationship would be a breach of
fiduciary duty (2004: 66)
• disclosing medical errors to patients when they have been
injured by the error: see [4.8.2].

5.4 Healthcare complaints

[5.4.1] What are the healthcare complaints systems? All jurisdic-
tions have an independent healthcare complaints system. The purpose
of these systems is to provide a non-litigious method of complaint
handling in the health services industries. The coverage of the
schemes varies between jurisdictions, but most have a fairly wide
ambit, dealing not only with medical and allied health services but
with some complementary health services as well.
Legislation establishing healthcare complaints systems in the
Australian states and territories is listed in table 5.4.1.

TABLE 5.4.1 Healthcare complaints legislation

ACT Human Rights Commission Act 2005
NSW Health Care Complaints Act 1993
NT Health & Community Services Complaints Act 1998
Qld Health Quality & Complaints Commission Act 2006
SA Health & Community Services Complaints Act 2004
Tas Health Complaints Act 1995
Vic Health Services (Conciliation & Review) Act 1987
WA Health Services (Conciliation & Review) Act 1995

[5.4.2] Who can make a healthcare complaint? Complaints can be

made by consumers of health services or their representatives (parents,

57
[5.4.3] The Australian Medico–Legal Handbook

guardians and so on). Most jurisdictions also allow for other health
providers and government officials to make complaints.

[5.4.3] On what grounds can a complaint be made? Complaints

can be made on a wide variety of grounds. Examples are:
• unreasonable refusal to provide a health service
• acting unreasonably in the provision of a health service
• unreasonable denial or restriction of access to health records
• unreasonable disclosure of health information
• action by a registered provider of health services that would
provide a ground for disciplinary action
• unreasonable failure by a public or private healthcare body to
properly investigate or take action in relation to a complaint.

[5.4.4] How do healthcare complaints systems respond to com-

plaints? Once a complaint is made, healthcare complaints authorities
have powers to investigate it (including, in some circumstances,
powers to operate under search warrants), or to conciliate the matter.
Conciliation is voluntary and confidential.
Once a matter has been investigated, the healthcare complaints
body can refer it to a disciplinary body for further action. In extreme
cases it might also be referred for prosecution in the criminal law
system.
The healthcare complaints systems are not compensatory, in that
they do not order damages to be paid to patients.

5.5 Professional conduct and discipline

[5.5.1] What bodies are responsible for the registration and
discipline of health professionals? Table 5.5.1 lists the different
registration and discipline bodies for medicine and nursing in Australia.
It is by no means comprehensive – many allied and complementary
disciplines now have their own systems of registration and discipline.
South Australia requires medical students to also register with its
discipline body.
The Council of Australian Governments agreed in 2006 to create
an Australia-wide accreditation and registration board (see www.
coag.gov.au). At the time of writing this had not yet occurred.
The primary role of these bodies is to decide whether a person has
the mental and physical health, as well as the educational attainments,
to practise in the health professions. Another major function is to

58
 Aspects of the therapeutic relationship [5.5.2]

discipline health professionals who breach professional standards

and obligations.

TABLE 5.5.1 Registration and discipline of health

professionals: legislation and bodies
ACT Health Professionals Medical Board (www.medicalboard.act.
Act 2004 gov.au/); Nursing and Midwifery Board
(www.nursesboard.act.gov.au/)
NSW Medical Practice Medical Board (www.nswmb.org.au/);
Act 1992; Nurses Nurses and Midwives Board (www.nmb.
and Midwives Act nsw.gov.au/)
1991
NT Health Practitioners Health Professions Licensing Authority
Act 2004 (www.nt.gov.au/health/org_supp/
prof_boards/prof_licensing_auth.shtml);
Medical Board (www.nt.gov.au/health/
org_supp/prof_boards/medical/board.
shtml); Nursing and Midwifery Board
(www.nt.gov.au/health/org_supp/prof_
boards/nurse_midwifery/board.shtml)
Qld Medical Medical Board of Qld (www.medicalboard.
Practitioners qld.gov.au/); Queensland Nursing Council
Registration Act (www.qnc.qld.gov.au/home/index.aspx)
2001; Nursing Act
1992
SA Medical Practice Medical Board of South Australia (www.
Act 2004; Nurses medicalboardsa.asn.au/); Nurses Board
Act 1999 of South Australia (www.nursesboard.
sa.gov.au)
Tas Medical Medical Council of Tasmania (www.
Practitioners medicalcounciltas.com.au/);
Registration Act Nursing Board of Tasmania (www.
1996; Nursing Act nursingboardtas.org.au/)
1995
Vic Medical Practice Medical Practitioners Board of Victoria
Act 1994; Nurses (medicalboardvic.org.au/); Nurses Board
Act 1993 of Victoria (www.nbv.org.au/)
WA Medical Act 1894; Medical Board of Western Australia (www.
Nurses Act 1992 wa.medicalboard.com.au/); Nurses Board
of Western Australia (www.nbwa.org.au/)

[5.5.2] On what grounds can registered health professionals

be disciplined? The primary concern of disciplinary bodies is the
protection of the public. Many jurisdictions allow for disciplinary

59
[5.5.3] The Australian Medico–Legal Handbook

investigation where a practitioner is accused of ‘unsatisfactory pro-

fessional conduct’, ‘professional misconduct’, ‘infamous or improper
conduct’ and so on.
The different types of conduct that may lead to disciplinary
action can be summarised as follows:
• lack of professional competence, skill and knowledge
• practising while under the influence of drugs and alcohol, or under
the influence of medications that may reduce ability to practise
• failing to inform a registration board of situations where other
health professionals have contravened required standards of
practice which may have endangered members of the public
• prescribing drugs of dependence to a drug-dependent person
• non-compliance with infection control measures and public
health regulations
• failure to comply with the conditions of registration
• contravention of registration legislation, or orders of a
disciplinary tribunal
• failure to maintain adequate health records, or interfering with
the accuracy of such records
• conviction for serious criminal offences (normally those
relating to dishonesty or violence, including sexual violence)
• accepting benefits from other health providers or suppliers of
health products for referrals or recommendations
• failing to disclose pecuniary interests when giving referrals or
recommendations
• overservicing
• misrepresenting facts in medical certificates
• permitting unskilled or unregistered persons to perform
services they are not qualified or registered for
• refusing or failing to attend emergencies
• advertising health services in a misleading way
• conduct that is generally capable of bringing the medical
profession into disrepute
• breaching codes of ethics and professional practice.
State and territory legislation dealing with conduct that may require
disciplinary action is listed in table 5.5.2.

[5.5.3] Is a sexual relationship between a health professional and

a client professional misconduct? Sexual relationships with existing
patients are universally considered to be unethical and in breach of

60
 Aspects of the therapeutic relationship [5.5.3]

TABLE 5.5.2 Legislation dealing with disciplinary action

ACT Health Professionals Act 2004
NSW Medical Practice Act 1992
NT Health Practitioners Act 2004
Qld Health Practitioners (Professional Standards) Act 1999
SA Medical Practice Act 2004
Tas Medical Practitioners Registration Act 1996
Vic Medical Practice Act 1994
WA Medical Act 1894

professional conduct. Sexual relationships with former patients are

also highly suspect, particularly when the patient was being treated
for a mental illness or disorder.
Most disciplinary bodies also require health professionals who
know of a sexual relationship between another health professional
and a patient to report the matter. If you are approached by a
patient who wishes to report another health professional for sexual
harassment, it is important to give the patient advice and guidance,
and whenever possible refer them to a third party for support in
making the complaint.
State and territory sexual relationship policies covering doctors
are listed in table 5.5.3.

TABLE 5.5.3 Policies dealing with sexual relationships

ACT Medical practitioners and sexual misconduct (www.
medicalboard.act.gov.au/Standards%20Statements/docs/
sexual%20misconduct.pdf)
NSW Sexual misconduct (www.nswmb.org.au/index.pl?page=74)
NT Sexual relations policy (www.nt.gov.au/health/org_supp/prof_
boards/medical/Sexual%20relations%20policy%20May%20
2004.pdf)
Qld Statement on sexual relationships between health
practitioners and their patients (www.medicalboard.qld.gov.
au/Publications/Publications_files/Statement%20on%20
Sexual%20Relationships.pdf)
Tas Medical practitioners and sexual misconduct (www.
medicalcounciltas.com.au/pdfs/150400%20(Policy%20
no%204%20Sexual%20Misconduct).pdf)
Vic Sexual misconduct (www.medicalboardvic.org.au/content.
php?sec=60)

61
[5.5.4] The Australian Medico–Legal Handbook

[5.5.4] Must a health professional who suffers from physical or

mental impairment report the impairment? A health professional
who suspects that they are suffering from health problems, including
drug and alcohol problems, has a duty to seek treatment for those
problems and advice as to how the problems may affect their ability
to perform their job.
Each jurisdiction’s medical board has policies relating to
impairment and programs for doctors to help them with their problems.
The standard condition in all codes of practice is illustrated by the
New South Wales Medical Board’s Code of Professional Conduct:

2.10 If your own health may put patients at risk

If you have a serious condition which you could pass on to patients,
or if your judgment or performance could be significantly affected
by a condition or illness, you should:
• take and follow advice from an appropriate medical practitioner
on whether, and in what ways, you should modify your practice.
Do not rely on your own assessment of the risk to patients; and
• have all the necessary tests and act on the advice given to you by
a suitably qualified medical practitioner about necessary treatment
and/or modifications to your clinical practice.

Most boards have programs to help impaired practitioners. Conditions

may be placed on the health professional’s registration, such as super-
vised working conditions or regular urine testing. In extreme cases,
where the impairment presents a significant threat to the community,
a doctor may have their registration suspended or cancelled.
State and territory policies on impairment are listed in table
5.5.4.
Blood-borne infections are discussed in chapter 14.
TABLE 5.5.4 Policies dealing with impairment
ACT Standards, statements, code of conduct (www.medicalboard.
act.gov.au/Standards%20Statements/docs/code%20of%20
conduct.pdf)
NSW Code of Professional Conduct (www.nswmb.org.au/index.
pl?page=44) Also see the Impaired registrants (health) program
(www.nswmb.org.au/index.pl?page=5)
NT Good medical practice guidelines (www.nt.gov.au/health/
org_supp/prof_boards/medical/Good%20Practice%20
Medicine%20Guidelines.pdf)
=
62
 Aspects of the therapeutic relationship [5.5.5]

= TABLE 5.5.4 Policies dealing with impairment

Qld Good medical practice guidelines (www.medicalboard.qld.
gov.au/Publications/Publications_files/Good%20Medical%20
Practice.pdf)
SA Doctors’ health (www.medicalboardsa.asn.au/page2.
php?parentid=53&pageid=53)
Tas Guide to good medical practice (www.medicalcounciltas.com.
au/pdfs/Guide%20to%20Good%20Medical%20Practice.pdf)
Vic Doctors’ health (www.medicalboardvic.org.au/content.
php?sec=27)
WA The duties of a medical practitioner registered with the
Medical Board of Western Australia (www.medicalboard.com.
au/pdfs/DutiesOfADoctor.pdf)

[5.5.5] If I discover that a colleague is impaired, must I report

it? In most jurisdictions, reporting of impaired colleagues is not
mandatory, although it is considered to be an ethical obligation,
failure in which may lead to disciplinary action. Good faith reporting
is given immunity from civil action, so that you will not be sued if it
is later shown that the reported health professional was not impaired
or incompetent.
In New South Wales, South Australia, Tasmania and Victoria it is
mandatory to report treatment for certain conditions, so that if you
are treating another health professional for an impairment, mental
illness or drug and alcohol dependence, you must report the identity
of the health professional to the relevant board.
Legislation dealing with mandatory reporting of impairment is
in table 5.5.5.

TABLE 5.5.5 Mandatory reporting of impairment: legislation

and requirements
NSW Medical Practice If a treating health professional finds
Act 1992 s 70; that a registered doctor has mental
Medical Practice incapacity, it must be reported to the
Regulation 2003 r 11 Medical Board.
SA Medical Practice Health professionals, hospital
Act 2004 s 49 administrators and teachers of medical
students must report on health
professionals and medical students they
suspect to be medically unfit to provide
medical treatment.
=
63
 [5.5.5] The Australian Medico–Legal Handbook

= TABLE 5.5.5 Mandatory reporting of impairment: legislation

and requirements
Tas Medical A registered medical practitioner who
Practitioners signs an order under the Mental Health
Registration Act Act 1996 or a medical recommendation
1996 s 75 under the Alcohol and Drug Dependency
Act 1968 in relation to a registered
medical practitioner must give the
Medical Council notice of that fact.
Vic Medical Practice Reporting by treating health
Act 1994 professionals is mandatory when a
registered health practitioner is being
treated for an illness or condition that
seriously impairs or may seriously
impair the health practitioner’s ability
to practise, and which may result in the
public being put at risk.

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapter 8
Freckelton I & Petersen K (eds), Disputes and dilemmas in health law
(2006) Federation Press, Sydney, chapters 24, 25
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 12
Radan P, Stewart C & Lynch A, Equity and trusts (2nd edn, 2005)
LexisNexis, Sydney, chapter 16
Skene L, Law and medical practice: rights, duties, claims and
defences (2nd edn, 2004) LexisNexis, Sydney, chapter 2

Cases
Breen v Williams (1996) 186 CLR 71

64
 CHAPTER 6

Consent
6.1 Obtaining consent
[6.1.1] What is consent? Consent, in this context, is the permission
given by one person to be touched by another. Generally speaking, no-
one is allowed to touch another person without consent. This principle
is often referred to as the principle of self-determination or body
inviolability. It reflects the law’s concern with patient autonomy.

The law regards the principle of self-determination very highly. It

has been said that the slightest touching of another person’s body
without consent can give rise to a civil claim of battery, or a charge
!
of criminal assault. Poor consenting practices can also lead to
claims of negligent advice: see [6.3.1]. It is not a defence to say
that the touching was done with good intentions or in the absence
of malice.
The law will excuse touching that was consented to. There
are also other excuses accepted by the law such as self-defence,
necessity or a lawful excuse contained in legislation (such as
mental health legislation). These are discussed below.

[6.1.2] When is consent required? Consent is generally required

whether the touching is direct or indirect (for example, giving the
patient a drug or exposing them to radiation during an X-ray), even
for very minor treatment. No harm need be done to the patient for
actions in assault and battery to arise. Even treatment that benefits
the patient may attract a legal sanction, unless consent has been
obtained or some other defence is available.
Case example
In the Canadian case of Malette v Shulman (1990) 67 DLR (4th)
321, a doctor was held liable for battery when he ignored the
written advance directive of a Jehovah’s Witness to refuse blood
products. The plaintiff was awarded $20,000 at trial, even though

65
[6.1.3] The Australian Medico–Legal Handbook

the blood transfusion had saved her life. The defendant appealed
the amount of damages awarded. The court stated:
In [the defendant’s] submission, given the findings as to the
competence of the treatment, the favourable results, the doctor’s
overall exemplary conduct and his good faith in the matter, the
battery was technical and the general damages should be no more
than nominal. While the submission is not without force, damages
of $20,000 cannot be said to be beyond the range of damages
appropriate to a tortious interference of this nature. The trial judge
found that Mrs Malette suffered mentally and emotionally by reason
of the battery. His assessment of general damages was clearly not
affected by any palpable or overriding error and there is therefore no
basis upon which an appellate court may interfere with the award [at
338–9].

Health professionals often associate the consent process with major

medical treatments, but consent is required for most of the physical
interactions that take place with patients, however minor.

[6.1.3] What form should consent take? Consent can be express

(either oral or written) or implied.
Consent may be implied by the patient’s conduct; for example a
patient may hold out their arm to have their blood pressure measured.
Where possible it is advisable (often with a simple inquiry) to confirm
that consent is being given (the patient who holds out an arm may
be surprised when an injection is given rather than the expected
blood pressure test).

In nearly all circumstances express consent is a safer option than

implied consent because there is less likelihood of there being
miscommunication between the health professional and the
!
patient.

[6.1.4] Must consent be in writing? There is no general requirement

for consent to be given in writing, although in some situations written
consent is required by legislation.
The value of written consent is twofold:
• It may assist the practitioner in any subsequent legal
proceedings, as it may be viewed as evidence that consent
was obtained and that the treatment was discussed with the
patient.

66
 Consent [6.1.6]

• The process of signing a consent form may signify to the

patient that an important decision is being made, and offer
an opportunity for clarification or the provision of more
information.

Health departments and/or hospitals may have policies on what

consents need to be evidenced in writing. For example, Consent
to Medical Treatment—Patient Information PD2005_406 requires
!
that a model consent form be used for major procedures, including:
• all operations or procedures requiring general, spinal, epidural
or regional anaesthesia or intravenous sedation
• any invasive procedure or treatment where there are known
significant risks or complications
• blood transfusions or the administration of blood products
• experimental treatment for which approval of an ethics
committee is required (unless there are sound reasons for
doing otherwise).
A signed consent form is not needed for minor procedures
performed under local anaesthesia.

[6.1.5] Must consent be obtained for every procedure or stage in

treatment? Medical treatment may involve a number of different
procedures and a series of patient visits. Information should be
provided about the treatment regime at the time when it is proposed.
Any written consent will then cover all the procedures involved in the
program. It may be inferred from the patient’s attendance that they are
consenting to the continuation of treatment, and no additional consent
in writing should be required. It is useful to confirm with the patient
that they are happy to continue with the treatment program.
If there are variations in the treatment program or new information
about the risks, or if new alternative treatments have been identified,
it may be necessary for a new form to be completed.

[6.1.6] Can a consent form be faxed or emailed? It is preferable

that any consent form relied on and stored with the patient’s medical
records should be an original, rather than a faxed copy, photocopy
or emailed copy. There will be circumstances, however, where the
original form is not available. In this case a note should be included
in the patient’s medical record explaining why the original was not
available.

67
[6.1.7] The Australian Medico–Legal Handbook

Care should be taken to copy both sides of a double-sided form

when it is faxed or photocopied.

[6.1.7] How long does consent remain valid? This is not specified
in legislation. The general rule is that consent remains valid until:
• it is withdrawn by the patient, or
• the patient’s circumstances change in a material respect.
If a significant period of time has elapsed since the consent was
obtained the patient should be asked to affirm it. What constitutes
a significant period of time will depend on the patient’s particular
circumstances.

[6.1.8] Who is responsible for obtaining consent? The ultimate

responsibility of obtaining consent lies with the clinician in charge
of the treatment. However, it is possible for that clinician to delegate
authority to other healthcare professionals, such as more junior
members of staff. The proviso for such delegation is that the person
obtaining consent must be fully equipped to deal with the consent
process. If appropriate procedures and safeguards are not in place the
risk is high that the patient’s consent will not have been obtained.
Similarly, in the course of treatment, consent should be obtained
each time the patient is being touched, such as when blood pressure or
blood tests are being taken. The healthcare professional who intends
to touch the patient has the responsibility of obtaining consent.

If you’re not sure that a patient has consented to a procedure, ask

them! !
[6.1.9] Does the patient have a right to refuse treatment? The
logical consequence of the health professional’s duty to seek consent
is the patient’s legal right to refuse treatment. It has been said that
a patient can refuse treatment for whatever reason, even when the
absence of treatment will result in their death.
The right to refuse treatment is discussed in chapter 10.

[6.1.10] Can a patient withdraw their consent? A patient may

withdraw their consent at any time. Even if a consent form has been
signed and preparations have been made for a procedure to commence,
a patient can still change their mind.

68
 Consent [6.1.11]

Where expense has been incurred it could be argued that the patient
may be breaching a contract, but this will be no defence for proceeding
in the face of the patient’s withdrawal of consent. To proceed under
these circumstances may constitute an assault or a battery.
The circumstances of withdrawal of consent must be considered
in the context of the procedure. If the procedure has commenced
and it would be unsafe for the patient if it were stopped, it may be
in the patient’s best interests to continue. A request to ‘stop’ may in
any case not be a withdrawal of consent but a request to relieve the
patient’s pain or discomfort.

[6.1.11] Are there limits to what can be consented to? Yes. The
law places limits on the types of bodily interference that can be
consented to. The best example of the limits of consent is voluntary
euthanasia, which is illegal in every jurisdiction in Australia. The
fact that a person consents to being killed is no defence to a criminal
charge of homicide.
Other forms of bodily interference in which grievous bodily harm
may result may be consented to, but only when the law regards the
activity as having some sort of public benefit. Heavy contact sports
such as boxing and rugby union may be consented to even though
there is a considerable risk of serious injury, because the law regards
such activities as having benefits for the public. In contrast, it has
been said that extreme forms of sadomasochistic behaviour cannot
be consented to because there is no justifiable public interest.

Case example
In R v Brown [1994] AC 212, it was held that consent
could not form the basis of a defence to assaults occurring
during consensual sadomasochistic acts among a group of
homosexuals that included extreme forms of genital torture.
The participants were convicted of assault. The House of Lords
upheld the conviction on the basis that public policy required that
criminal sanctions should be used against conduct that caused
serious, although not permanent, injury.

Medical treatments, including risky surgeries, are ordinarily con-

sidered in the public interest, even though they may also involve
grievous bodily harms with an appreciable risk of death or permanent
injury.

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[6.2.1] The Australian Medico–Legal Handbook

6.2 The requirements for a valid consent

[6.2.1] What are the requirements for a valid consent? For a
patient’s consent to be valid the following criteria must be met:
• competence
• voluntariness
• specificity
• understanding.

[6.2.2] What is competence? The person must be competent; that

is, they must have the capacity to understand the general nature and
effect of the proposed treatment. All adults are presumed to have
capacity, but it is a presumption that can be rebutted. Some adults
may lack capacity because of the effects of dementia or intellectual
disability, or their capacity may be temporarily or permanently
impaired by drugs, alcohol or a transient medical condition such
as an infection.
The capacity of adults is discussed in chapter 7. The capacity of
children is discussed in chapter 9.

[6.2.3] What is voluntariness? Any consent (or refusal to consent)

must be freely or voluntarily given. While it is acknowledged that
treatment decisions are rarely free from external pressures, the law
is concerned that the patient not be coerced into giving consent.
Lawyers describe a decision given under coercion as involving undue
influence. In such situations the decision cannot be said to have been
made by the patient. Pressure may come from the patient’s friends
or relatives, or from healthcare providers.

Case example
Re T (An Adult) (Consent to Medical Treatment) [1992] 4 All ER
649 concerned a woman who was not a Jehovah’s Witness who
had given conflicting messages about whether she consented
to a blood transfusion. Her final decision before becoming
unconscious was to refuse treatment. However, the patient’s
mother was a Jehovah’s Witness, and she had been exerting
considerable pressure on the patient to refuse blood at a time
when the patient was in severe pain and under the influence of
drugs.
The Court of Appeal of England and Wales said that the
patient had a right to refuse the transfusion, but that the decision
had to be the patient’s and not a third party’s. The court found
that, given the fact that the patient’s mind was weak from pain

70
 Consent [6.2.5]

and drugs and that the mother’s influence was very strong, the
decision to refuse blood products was not truly the patient’s and
that blood could be administered according to the necessity
doctrine: see [6.4.1].

[6.2.4] What is specificity? The consent must be specific; it refers

only to the treatment agreed upon. When a patient consents to a test,
procedure or treatment, the consent only covers that test, procedure
or treatment. It is not permissible to extend the treatment and rely
on the original consent.
The only situation in which more extensive treatments can be given
is an emergency in which the additional treatment can be justified
according to the defence of necessity: see [6.4.1].

Case example
The American case of Mohr v Williams (1905) 104 NW 12
concerned a patient who had consented to an operation on her
right ear. While she was being operated on it was discovered that
the left ear also required treatment, and the treatment was carried
out. However, it was not necessary to save the woman’s life or
prevent an imminent harm, and the court found that the patient,
who had not consented to the operation on her left ear, had
suffered a battery.

Many consent forms contain clauses stating that additional pro-

cedures may be needed if something unexpected is found. These
clauses do not give permission for any additional procedures thought
to be in the patient’s best interests. The additional procedure must
either:
• be related in some way to the primary treatment (and have
been discussed with the patient), or
• be necessary to save the patient’s life or to prevent serious
damage to their health.

[6.2.5] What is understanding? Any information communicated

to the patient must be presented in such a way that the particular
patient can understand it.
A patient who is not fluent in English or who has special communi-
cation needs is not considered to lack capacity to give consent to
medical treatment. Where available, resources should be used to
enable adequate communication with the patient. For example, in the

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[6.3.1] The Australian Medico–Legal Handbook

case of a patient who is not fluent in English a qualified healthcare

interpreter should be used.
6.3 Information provision and consent
[6.3.1] What are my duties in relation to information provision?
Australian law requires doctors to satisfy two distinct duties when
providing information to patients about treatment:
• the duty to provide information about the broad nature and
effects of treatment, and
• the duty to inform the patient about material risks involved in
the treatment.
The first duty, when satisfied, allows a doctor to successfully claim
that the patient consented to the treatment, if a claim of battery or
criminal assault is later made. The second duty, when satisfied, allows
the doctor to defend a claim that they negligently failed to inform
the patient of the risks of treatment.
This second duty is often referred to as the duty to seek informed
consent. However, that description may be confusing because it
seems to conflate the two separate duties discussed above. A better
description is the duty to provide for informed decision-making.

[6.3.2] What is a material risk? A material risk is a risk:

• that a reasonable person in the patient’s position, if warned of
the risk, would be likely to attach significance to, or
• that the medical practitioner is, or should reasonably be, aware
that the particular patient, if warned of the risk, would be
likely to attach significance to.

Case examples
In Rogers v Whitaker (1992) 175 CLR 479, the High Court of
Australia found that an ophthalmologist, Dr Rogers, was negligent
when he failed to inform his patient of a 1 in 14,000 chance that
she may develop sympathetic ophthalmia and go blind. The
patient, Mrs Whitaker, was already nearly blind in her right eye
when she sought an elective procedure on that eye. After surgery
she developed a recognised complication in her left (good) eye,
leaving her totally blind. At no stage was she warned of the
possibility of this complication. She argued that the doctor had
a duty to inform her of this risk because she would not have had
the procedure had she have known about it. The doctor’s defence
to the claim of negligence was that the risk was remote, and thus
was not one that would normally be communicated to a patient.

72
 Consent [6.3.3]

The court’s finding of negligence was based primarily on the

fact that Mrs Whitaker had expressed a concern over the effects
of the procedure on her good eye. This should have warned the
doctor that the 1 in 14,000 risk of complications was material to
her. Nor was it a defence to say that other health professionals
would not have communicated the risk. The duty to provide
for informed decision-making is focused on what information is
needed by the particular patient to make a decision, and thus
cannot be totally determined by the existing practices of the
medical profession. While such practices are relevant to the
question of what information is material, they do not exclude
consideration of the patient’s subjective needs.
Chappel v Hart (1998) 195 CLR 232 concerned a female
education officer who successfully sued for damage to her
voice caused by mediastinitis and laryngeal nerve damage after
oesophageal surgery to remove a pharyngeal pouch. The doctor
had not warned her of the risks of voice damage even though she
had mentioned her concerns about it before surgery.
In Rosenberg v Percival (2001) 205 CLR 434, a female
patient (who was also a nurse) failed in her claim against a dental
surgeon who performed a sagittal split osteotomy on her as
treatment for an underdeveloped jaw. The patient experienced
temporomandibular joint complications, including jaw pain and
loss of function, affecting her ability to speak. She claimed that
had she been warned of these complications she would not have
undergone surgery. The trial judge found that the patient would
have had the operation even if the risk had been communicated
to her. The High Court of Australia upheld this finding. The
judgment clearly states that in a successful action for breach of
the duty to provide for informed decision-making, the patient
must prove that they would not have undergone the procedure
had they been given the information about the material risk.

[6.3.3] Do I need to tell patients about all possible risks? No. The
law only requires you to provide information concerning material
risks. There is no legal requirement to warn patients about everything
that could go wrong.

The legal test is focused on the needs of patients rather than the
usual practices of the medical profession. A material risk might
be one that the treating doctor and other professionals think is
!
immaterial.

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[6.3.4] The Australian Medico–Legal Handbook

[6.3.4] What kind of information should I give patients? The type

of information that must be given varies depending on the patient’s
medical condition, and their needs. It includes information about the
patient’s condition, investigation options, treatment options, benefits,
possible adverse effects or complications, and the likely outcome if
treatment is not undertaken.

According to the NHMRC’s General guidelines for medical

practitioners on providing information to patients 2004, doctors
should normally discuss the following information with their
!
patients:
• the possible or likely nature of the condition
• the proposed approach to investigation, diagnosis and
treatment
– what the approach entails
– the expected benefits
– common side effects and material risks of any intervention
– whether the intervention is conventional or experimental
– who will undertake the intervention
• other options for investigation, diagnosis and treatment
• the degree of uncertainty of any diagnosis arrived at
• the degree of uncertainty about the therapeutic outcome
• the likely consequences of not choosing the proposed
diagnostic procedure
• any significant long-term physical, emotional, mental, social,
sexual, or other outcome that may be associated with a
proposed intervention
• the time involved
• the costs involved, including out-of-pocket costs.

[6.3.5] Can information be withheld from a patient? There are only

very limited circumstances in which information may be deliberately
withheld from a patient.
The majority decision in Rogers v Whitaker recognised that there
may be circumstances under which providing information could cause
the patient harm and where it should therefore be withheld – this is
frequently referred to as therapeutic privilege. Particular information
may be withheld where the practitioner believes, on reasonable
grounds, that providing it may damage the patient’s health. The onus
is on the practitioner to show that providing the information would
be reasonably likely to cause significant harm.
It is not acceptable to argue that if the risks associated with a

74
 Consent [6.3.8]

procedure were disclosed the patient may choose not to go ahead

with it. The harm must involve the provision of the information, not
the outcome of a valid decision by the patient.
Where a patient lacks competence to make decisions for
themselves and a surrogate decision-maker is involved, the principle
of therapeutic privilege cannot be invoked.

[6.3.6] Can a patient choose not to be informed about risks? A

competent patient can choose to waive their right to be informed
about diagnosis and treatment. The waiver must be clear and
unequivocal.
A patient who chooses not to receive information, or to leave the
decision to others, should be encouraged to receive some information
about their condition and treatment, even if it is very basic. Care
should be taken where someone other than the patient claims that
the patient does not want to know about their diagnosis or treatment.
This may be the legitimate view of the patient, but there could also
be a misunderstanding.

[6.3.7] Is a written information sheet sufficient for informing

patients about material risks? Pre-prepared information about
a procedure or treatment can be very useful for providing patients
with information about a diagnosis or treatment. However, it is not
a substitute for ascertaining whether a person understands the nature
of, and the risks involved in, a procedure or treatment.
A patient who is given an information sheet should be given
enough time to read and reflect on the information, and an opportunity
to ask questions.

[6.3.8] What if my patient comes from a non-English-speaking

background? Where a patient has some difficulty or uncertainty in
understanding English, a qualified healthcare interpreter should be
used, and the fact that a healthcare interpreter has been used should
be noted in the patient’s medical record. Most consent forms have
space for a statement that the interpreter has interpreted the contents
of the form and the information given by the practitioner.
A member of the patient’s family, a friend or another non-
accredited person should not, in general, act as interpreter, as both
legal and ethical questions could be raised about the validity of any
consent obtained.

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[6.3.9] The Australian Medico–Legal Handbook

[6.3.9] Have the changes to tort law affected the law about
provision of information? No. The tort law changes reviewed in
chapter 4 have not changed the law as it is set down in Rogers v
Whitaker. In other areas of negligence, the Ipp reforms have reasserted
the Bolam standard to judge a health professional’s standard of
care. However, these laws were not aimed at the giving of advice
or information concerning risk, and the civil liability legislation has
left Rogers v Whitaker untouched.
In Queensland and Tasmania, the duty to provide for informed
decision-making has been restated in s 21 of both the Civil Liability
Act 2003 (Qld) and the Civil Liability Act 2002 (Tas). A medical
practitioner in these states must provide:
• information that a reasonable person in the patient’s position
would, in the circumstances, require to enable them to make an
informed decision about whether to undergo the treatment or
follow the advice
• information that the registered medical practitioner knows, or
ought reasonably to know, that the patient wants to be given
before making the decision about whether to undergo the
treatment or follow the advice.
The section specifically states that it does not apply in situations of
emergency where the medical practitioner cannot communicate with
the patient and cannot contact a substitute decision-maker.

6.4 Where the patient’s consent is not required

[6.4.1] Do I need to obtain consent in an emergency? No. The
common law recognises a defence of necessity, which is sometimes
referred to as ‘emergency’. Where a patient lacks competence and
medical treatment is required to save their life or prevent serious damage
to their health, treatment may be provided without consent.
The treatment provided must be required urgently and not be
given merely because it is convenient. It must be proportionate to
the patient’s needs. Treatment that goes beyond what is necessary
to avert the crisis should not be given.
Importantly, treatment cannot be provided where the patient has
made a valid advance directive or refusal of treatment certificate
that clearly says they have refused the intervention, providing that
certain conditions are met: see chapter 10.
Most states and territories have enshrined the doctrine of emergency
in legislation allowing treatment without consent to avoid a serious

76
 Consent [6.4.2]

threat to a person’s life or prevent serious damage to their health:

see table 6.4.1. Some jurisdictions also allow treatment to prevent
the patient from suffering, or continuing to suffer, significant pain
or distress. However, nearly all jurisdictions forbid the use of these
sections to perform special treatments such as sterilisations or
psychosurgery.

TABLE 6.4.1 Emergency treatment without consent:

legislation and treatment permitted
NSW Guardianship Act 1987 Section 37 permits emergency
medical treatment for people over
16 under guardianship
Children and Young Section 174 permits emergency
Persons (Care & medical treatment for people under
Protection) Act 1998 18
NT Emergency Medical Section 3 permits emergency
Operations Act 1992 medical treatment for both children
and adults
Qld Guardianship & Sections 63, 64 permit urgent
Administration Act 1998 healthcare for adults
SA Consent to Medical
Treatment & Palliative
Care Act 1995
Tas Guardianship & Sections 40, 41 permit emergency
Administration Act 1995 medical treatment for adults
Vic Guardianship & Section 42A permits emergency
Administration Act 1986 medical treatment for adults
WA Guardianship & Section 119 permits emergency
Administration Act 1990 medical treatment for adults

[6.4.2] What if there is no emergency but the treatment is

necessary for the patient’s wellbeing? Some jurisdictions provide
for treatments to be given without consent outside the emergency
context. Minor treatments in these jurisdictions can be provided by
a health professional if:
• there are no substitute decision-makers available
• the treatment is necessary
• the treatment is that which will most successfully promote the
person’s health and well-being, and
• the patient does not object to the treatment being carried out.
In Victoria the Public Advocate must be notified of such treatment.

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In Tasmania the health professional must certify in the patient’s

clinical records that:
• the treatment is necessary and is the form of treatment that will
most successfully promote the person’s health and wellbeing,
and
• the person does not object to the treatment being carried out.
The relevant legislation is listed in table 6.4.2.

TABLE 6.4.2 Legislation dealing with treatment without

consent
NSW Guardianship Act 1987 s 37
Qld Guardianship and Administration Act 1998 s 64
Tas Guardianship and Administration Act 1995 s 41
Vic Guardianship and Administration Act 1986 s 42K

[6.4.3] What if the patient is unable to consent but a substitute

decision-maker is available? If the patient lacks competence but
an alternative decision-maker is available, that person’s consent is
as effective as the patient’s would be if they were competent: see
chapter 8.

[6.4.4] What if my patient is suffering from a mental illness that

makes obtaining consent difficult? The various mental health
regimes in Australia provide for treatment without consent, or even
against an express refusal, in certain circumstances. This is discussed
in chapter 13.

[6.4.5] Is consent necessary for testing for alcohol and other drugs
in traffic situations? All states and territories have mandatory blood
testing and other testing in cases of motor vehicle accidents, and cases
of drink and drug driving. This is discussed in chapter 19.

Further reading
Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapter 13
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 4
Mulheron R, ‘Twelve tests to identify whether a risk is “material”’
(2000) 11 National Law Review 1–19

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 Consent [6.4.5]

NHMRC, General guidelines for medical practitioners on providing

information to patients 2004, NHMRC, Canberra
Skene L, Law and medical practice: rights, duties claims and
defences (2nd edn, 2004) LexisNexis, Sydney, chapter 3
Skene L & Smallwood R, ‘Informed consent: lessons from Australia’
(2002) 324 British Medical Journal 39–41
Stewart C & Lynch A, ‘Undue influence, consent and medical
treatment’ (2003) 96 Journal of the Royal Society of Medicine
598–601

Cases
Chappel v Hart (1998) 195 CLR 232
Malette v Shulman (1990) 67 DLR (4th) 321
Mohr v Williams (1905) 104 NW 12
R v Brown [1994] AC 212
Re T (An Adult) (Consent to Medical Treatment) [1992] 4 All ER 649
Rogers v Whitaker (1992) 175 CLR 479
Rosenberg v Percival (2001) 205 CLR 434

79
 CHAPTER 7

Competence
7.1 Assessing the competence of patients to
give consent
[7.1.1] What is meant by ‘competence to consent to medical
treatment’? As chapter 6 makes clear, consent is the foundation for
the therapeutic relationship between health professionals and their
patients. The concept of consent is based on an assumption that the
patient has the ability to hear, understand and process the information
provided by the health professional. It also assumes that the patient
is able to communicate their decision about what they would like
the health professional to do. These two assumptions constitute an
assumption about the patient’s competence or capacity (these terms
can be used interchangeably).
Questions of competence or capacity are obviously important
in cases where a person suffers from a physical or mental condition
that affects their ability to make decisions, or to express them. If a
patient is incompetent, a substitute decision-maker must be involved
in the consent process.
The law of adult competence is discussed in this chapter. The law
of competence and consent for children is discussed in chapter 9.

[7.1.2] Should I presume that an adult is competent? Yes. At

common law and under some statutes, adults (people over 18)
are presumed to be competent, although it is possible to rebut the
presumption by showing that an adult lacks competence. In some
states the presumption of competence has been extended to people
younger than 18: see chapter 9.
The presumption is reversed for children. Children are presumed
to be incompetent unless they can prove otherwise: see chapter 9.

[7.1.3] What is the test for competence? Most common law

jurisdictions appear to have settled on a functional test of competence

80
 Competence [7.1.3]

that requires the health professional to examine the ability of the

particular patient to consent to the specific treatment being offered.
The patient must be able to:
• understand and retain treatment information
• believe the information
• weigh the information and reach a decision
• communicate their decision.
The functional test can be contrasted with a status-based approach,
which would allow the health professional to make an assumption
about the patient’s competence on the basis of their medical condition
(for example, ‘all people with Down syndrome are incompetent’). It
can also be contrasted with an outcome approach, where the health
professional could judge the patient’s competence by looking at the
reasonableness of their decision (for example, ‘no reasonable person
would refuse a blood transfusion, so the patient is incompetent’).
Neither the status-based approach nor the outcome approach are
used for determining competence, because neither values the patient’s
right to control their own body.

Case examples
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 concerned
a patient in the Broadmoor Asylum who refused consent to
having his gangrenous leg amputated. The doctors questioned
his competence to make a decision about treatment, given that
he was suffering from a mental illness. The judge defined capacity
as a sufficient understanding of ‘the nature, purpose and effects
of the proffered [treatment]’. The mechanics of understanding
were split into three stages:
• comprehending and retaining treatment information
• believing the information
• weighing it among other factors to reach a decision.
As the patient was able to complete these three steps he was
found to have capacity, even though he was suffering from
schizophrenia and the delusional belief that he was a doctor.
The functional test was also applied in the case of Re B
(Adult: Refusal of Medical Treatment) [2002] EWHC 429, where
a ventilator-dependent patient in an intensive care unit sought
to refuse treatment and be allowed to die. Some of the patient’s
doctors could not accept her decision because they feared that
she was experiencing a ‘psychological regression’ brought on by
her level of disability, her reaction to being totally dependent on
others, her anger, and the effect of being in an intensive care unit
rather than a specialist unit.

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[7.1.4] The Australian Medico–Legal Handbook

The arguments against competence were rejected by the

court. There was no evidence of psychological regression, and
the patient’s lack of experience in rehabilitation did not go to
the issue of whether she understood the nature and effect of
refusing treatment. It was said that doctors should not confuse
the question of capacity with their own emotional reaction to the
patient’s decision.

In Australia, four jurisdictions have adopted a statutory test of

competence that uses the Re C three-stage functional test. The
legislation is listed in table 7.1.3.
The Queensland legislation has been tested at least twice. In
Re Bridges [2001] 1 Qd R 574, a Queensland woman was found
incompetent under the legislation after she refused dialysis because
she believed she was being punished by God and that God’s
punishment should stand. Re PVM [2000] QGAAT 1 concerned
a 39-year-old Aboriginal man with brain and spinal injuries who
was dependent on artificial ventilation and who requested the
removal of the ventilator, so as to be allowed to die. The Queensland
Guardianship and Administration Tribunal examined the evidence
of whether he could understand the nature and effects of what he
was asking and found that he did have capacity to consent to the
removal of the ventilator, favouring the evidence of his intensive
care physicians over psychiatric opinion that his competence was not
certain. This illustrates the requirement for a positive demonstration
of incompetence for a patient’s wishes to be ignored.

TABLE 7.1.3 Legislation adopting the Re C competence test

NSW Guardianship Act 1987 s 33(2)
Qld Powers of Attorney Act 1998 Sch 3; Guardianship &
Administration Act 2000 Sch 3
Tas Guardianship & Administration Act 1995 s 36(2)
Vic Guardianship & Administration Act 1986 s 36(2)

[7.1.4] What sort of treatment information does the patient need

to understand? The patient must be able to understand information
about the broad nature and effects of the treatment being proposed.
As a matter of best practice, the patient should also be able to
understand any material risks of treatment: see [6.3.2]. This helps

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 Competence [7.1.6]

the health professional to satisfy their duty to provide for informed

decision-making.
It is extremely difficult to test understanding. A simple test of
a patient’s understanding could be asking them to describe their
condition and the treatment options they are being offered.

[7.1.5] How can I test whether the patient believes the information
given about their treatment? Patients must believe that they are
suffering from the condition that has been diagnosed. Some patients
are unable to believe that they are ill; examples are anorexic patients
who believe they are overweight, and patients with gangrenous limbs
who believe that the limbs are merely dirty. Or they may think that
something is wrong with their health but be deluded about the cause,
as in Re Bridges, where the patient believed that her kidney failure
was a punishment from God: see [7.1.3].
Stewart & Biegler (2004) recommend asking patients a series of
questions about what they feel is wrong with them, and what they
believe would be the best treatment, as a way of examining beliefs
about their condition and treatment.

[7.1.6] How can I test the patient’s ability to weigh the treatment
information to reach a decision? In this part of the test the patient
must show an ability to consider the factors involved, weigh them
together and come to (and communicate) a decision about whether
they consent to the treatment.
The patient’s decision need not be one that others would regard
as reasonable. Rather, it is a process of reasoning that is required.
Most commonly, it is people with phobias, delusions or other
forms of mental illness or disorder who will fail this part of the test.
It must be shown that the patient’s phobia, delusion, mental illness
or disorder affects their ability to make the decision at hand. As
illustrated by Re C, it is possible for a person to reason even when
they are having delusions. C’s delusion did not affect his ability to
weigh the factors together.
Case example
Re MB [1997] 2 FLR 426 concerned a woman who had
consented to an emergency caesarean section but could not
consent to the insertion of a needle for the preliminary anaesthetic
because of an acute needle phobia. The court found that her

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phobia made her incompetent because it prevented her from

being able to reason through the issue of consenting to the
anaesthetic.

[7.1.7] When should competence be assessed? A patient’s compe-

tence is generally assessed when their health decisions do not seem
rational, or they appear to be suffering from an illness or injury that
might affect their ability to make a decision. Examples include patients
with head injuries, patients under the influence of drugs or alcohol,
and patients with dementia, delirium (resulting from infection, for
example), or mental illness. Assessment may also be necessary in
cases where a patient is suffering from pain, shock, fatigue, panic,
fear or confusion, or where their decision does not accord with the
practitioner’s assessment of their best interests.
It is important to remember that simple improvements in the
patient’s level of comfort may improve competence – giving them
time to think, allowing the support of friends and relatives, treating
any reversible symptoms, such as pain, that may be compromising
their capacity, or putting them in a quiet room or somewhere with a
non-threatening atmosphere.

[7.1.8] Does the law require certain forms of competency testing?

No. In general the law does not require specific types of tests of
competence, leaving such decisions to the discretion of the clinician.
Where health decisions are complex or have serious consequences,
or where there is disagreement between health professionals and
patients or their guardians, the doctor should assess competence
comprehensively. This may include:
• assessment of the patient’s understanding and beliefs through
discussion with them
• formal tests of cognitive capacity (such as the Standardised
Mini-Mental Status Examination)
• clinical psychological or neuropsychiatric assessment
• consideration of corroborative history from other people; for
example, family members and health professionals such as the
patient’s general practitioner.

[7.1.9] Do some decisions require the patient to have more

competence than others? It has often been argued that more difficult
decisions require patients to have more competence. However, others

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 Competence [7.1.9]

have argued that a person either has or does not have competence
to make a decision.
From a practical point of view both approaches lead to the
same conclusion: the more serious the decision that has to be
made, the greater the care needed to ensure that competence can
be presumed.

Adult patients are presumed to be competent, and any inquiry

must go towards evidence that disproves their ability to make the
decision. The more serious the decision, the more exacting the
!
inquiry that should be made to confirm competence.

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapters
11 & 12
Skene L, Law and medical practice: rights duties claims and defences
(2nd edn, 2004) LexisNexis, Sydney, chapter 5
Stewart C & Biegler P, ‘A primer on the law of competence to refuse
medical treatment’ (2004) 78 Australia Law Journal 325
Wallace M, Health care and the law (3rd edn, 2001) Lawbook Co,
Sydney, chapter 5

Cases
Re B (Adult: Refusal of Medical Treatment) [2002] EWHC 429
Re Bridges [2001] 1 Qd R 574
Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290
Re MB [1997] 2 FLR 426
Re PVM [2000] QGAAT 1

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 CHAPTER 8

Incompetent patients and

substitute decision-making
8.1 Substitute decision-making
[8.1.1] What if an incompetent patient needs treatment? Once it has
been determined that a patient is incompetent, the health professional
must investigate various issues to decide whether treatment should
be given. The following questions should be asked:
1 Does the patient have a valid advance directive that applies in
the circumstances?
• If the answer is ‘yes’, follow the directive.
• If the answer is ‘no’, go to question 2.
2 Has a court or guardianship authority appointed a guardian or
made orders relating to the patient’s treatment?
• If the answer is ‘yes’, seek consent from the guardian, or
follow the orders of the court or guardianship authority.
• If the answer is ‘no’, go to question 3.
3 Has the patient created an enduring power of attorney over
health matters?
• If the answer is ‘yes’, seek consent from the attorney,
medical agent or enduring guardian.
• If the answer is ‘no’, go to question 4.
4 Is there a person responsible or statutory health attorney? (not
available in the ACT or the Northern Territory)
• If the answer is ‘yes’, seek consent from person responsible
or statutory health attorney.
• If the answer is ‘no’, go to question 5.
5 Is the treatment in the patient’s best interests and necessary to save
their life or prevent injury or damage to their health? (see [6.4.1])
• If the answer is ‘yes’, provide the treatment, under the
doctrine of necessity.
• If the answer is ‘no’, do not provide the treatment.

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 Incompetent patients and substitute decision-making [8.2.1]

These questions, and the discussion that follows, do not apply to

treatments for mental illnesses and disorders. These are discussed
in chapter 13.
!
The first question relates to whether the patient has made an advance
directive that applies in the circumstances. While advance directives
are rare, they are the first thing to check because they may indicate the
patient’s own decision about whether they consent to the treatment
being proposed. The law regarding advance directives is discussed
in chapter 10.
The law in each state and territory provides for various mechanisms
of substitute decision-making where there is no advance directive.
These include:
• guardianship or orders from a court or guardianship authority
• enduring powers of attorney over health matters
• persons responsible
• statutory health attorneys.
In the absence of a substitute decision-maker, a health professional
may provide treatment without consent as long as the treatment is:
• an emergency medical treatment, or
• a minor treatment that is in the patient’s best interests or
necessary to improve their health and wellbeing: see [6.4.1].
This book uses the term substitute decision-makers to refer to
court- and tribunal-appointed guardianship, enduring powers of
attorney, enduring guardianship, persons responsible and statutory
health attorneys. The various kinds of substitute decision-maker are
discussed below.

8.2 Guardianship
[8.2.1] What is guardianship? A guardian is a person who is
appointed, either by a court or a guardianship authority, to make
decisions on behalf of an incompetent adult.
The courts’ power to appoint a guardian comes from its parens
patriae jurisdiction. Literally translated, parens patriae means ‘father
of the people’. This jurisdiction has existed for over a thousand
years, and it gives the Crown the power to care for children, people
with intellectual disability and people with mental illness. In
modern times, the jurisdiction survives in the power of the Supreme
Court in each state and territory to make orders for the care of
incompetent adults (and of children: see chapter 9). The parens

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[8.2.1] The Australian Medico–Legal Handbook

patriae jurisdiction also gives the courts power to appoint guardians

to make decisions regarding medical treatment, and to review those
decisions.
All Australian states and territories have passed legislation
creating guardianship bodies with powers similar to those of the
Supreme Courts in this area. These bodies are intended to operate
informally, quickly and efficiently, without the need for specialist
legal counsel. They have not taken over the role of the Supreme
Courts; rather they operate as alternative avenues for the appointment
of guardians and the review of guardianship decisions. Any decision
of a guardianship authority can be reviewed by the Supreme Court
of the relevant jurisdiction.
Applications for guardianship can be made by any person who
has an interest in the patient’s care; for example, their family, their
friends, and members of their treatment team. Courts and guardianship
authorities determine whether a patient is in need of guardianship and,
if they find this to be the case, appoint the best person to represent
the patient’s interests. In the absence of a suitable candidate courts
and guardianship authorities often appoint statutory guardians, such
as the Public Guardian in New South Wales, the Northern Territory
and Tasmania, the Adult Guardian in Queensland, and the Public
Advocate in Victoria and Western Australia.
The guardianship authorities in the Australian states and territories
are listed in table 8.2.1A.

TABLE 8.2.1A Guardianship authorities

ACT Guardianship and Management of Property Tribunal (www.
courts.act.gov.au/magistrates/index.html)
NSW Guardianship Tribunal (www.gt.nsw.gov.au/)
NT Guardianship Panel, Local Court (www.nt.gov.au/justice/ntmc/
index.shtml)
Qld Guardianship and Administration Tribunal (www.justice.qld.gov.
au/guardian/gaat.htm)
SA Guardianship Board (www.opa.sa.gov.au/index.htm)
Tas Guardianship and Administration Board (www.guardianship.tas.
gov.au/)
Vic Guardianship and Administration List, Victorian Civil and
Administrative Tribunal (www.vcat.vic.gov.au/)
WA State Administrative Tribunal (www.sat.justice.wa.gov.au/)

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 Incompetent patients and substitute decision-making [8.2.2]

Guardians effectively speak for incompetent patients, and their

decisions are treated as if they were the decisions of the patients
themselves. In some jurisdictions it is said that the guardian is given
the same power to do things that the represented person would have
enjoyed had they been competent. In others, the guardian has the
equivalent of parental power over the represented person.
Guardians in all jurisdictions are given powers in relation to the
represented person’s medical care. However, all jurisdictions place
limits on the types of treatment that can be consented to by a guardian
without additional approval from guardianship authorities or courts.
This is discussed in [8.5.1].
Guardianship legislation in the Australian states and territories
is listed in table 8.2.1B.

TABLE 8.2.1B Guardianship legislation

ACT Guardianship & Management of Property Act 1991 s 14
NSW Guardianship Act 1987 s 4
NT Adult Guardianship Act 1988 s4
Qld Guardianship & Administration Act 2000 ss 35, 37
SA Guardianship & Administration Act 1993 s 5
Tas Guardianship & Administration Act 1995 s 6
Vic Guardianship & Administration Act 1986 s 4(2)
WA Guardianship & Administration Act 1990 s 51

[8.2.2] How do courts, guardianship authorities and guardians

make decisions? Under the parens patriae jurisdiction courts, and
the guardians they appoint, are required to make decisions in the
best interests of the patient. The best interests test at common law
is very difficult to define, but it includes consideration of medical
and social factors and how they affect the patient’s life. In the UK,
the assessment of best interests was until recently left primarily to
the doctors in charge of the treatment team. In Australia (and lately
in the UK), there has been reluctance to leave such assessments
entirely to doctors, because the best interests of the patient are not
solely medical: see [9.5.1].
Most Australian decisions concerning best interests have occurred
in the context of the treatment of children. Fortunately, these cases
are relevant to the assessment of the best interests of adult patients,
because the issues are the same. In Re Marion (No 2) (1992) 17

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[8.2.2] The Australian Medico–Legal Handbook

Fam LR 336, the court created a checklist of factors to consider in

assessing best interests. See the Case example in [9.3.2] for the list
of factors.
Some jurisdictions have now dealt with the assessment of the
patient’s interests by guardianship authorities, and the guardians they
appoint, in their guardianship legislation. There is a heavy emphasis
in most of these schemes on substituted judgment, meaning that the
decision-maker must take into account the patient’s own wishes
and values.
The statutory factors that guardianship bodies and guardians
must consider when making decisions about treatment are listed in
table 8.2.2.

TABLE 8.2.2 Consent to treatment by guardianship authorities

and guardians: legislation and factors to consider
ACT Guardianship & Management of Property Act 1991
Section 4 states:
A person’s interests include the following:
(a) protection of the person from physical or mental harm;
(b) prevention of the physical or mental deterioration of the person;
(c) the ability of the person to
(i) look after himself or herself; and
(ii) live in the general community; and
(iii) take part in community activities; and
(iv) maintain the person’s preferred lifestyle (other than any part of the
person’s preferred lifestyle that is harmful to the person);
(d) promotion of the person’s financial security;
(e) prevention of the wasting of the person’s financial resources or the
person becoming destitute.
Section 5(2) states:
The decision-making principles to be followed by the decision-maker are the
following:
(a) the protected person’s wishes, as far as they can be worked out, must be
given effect to, unless making the decision in accordance with the wishes
is likely to significantly adversely affect the protected person’s interests;
(b) if giving effect to the protected person’s wishes is likely to significantly
adversely affect the person’s interests – the decision-maker must give
effect to the protected person’s wishes as far as possible without
significantly adversely affecting the protected person’s interests;
(c) if the protected person’s wishes cannot be given effect to at all – the
interests of the protected person must be promoted;
(d) the protected person’s life (including the person’s lifestyle) must be
interfered with to the smallest extent necessary;
(e) the protected person must be encouraged to look after himself or herself
as far as possible;
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and guardians: legislation and factors to consider
(f) the protected person must be encouraged to live in the general
community, and take part in community activities, as far as possible.
NSW Guardianship Act 1987
Section 4 states:
It is the duty of everyone exercising functions under this Act with respect to
persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount
consideration,
(b) the freedom of decision and freedom of action of such persons should be
restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal
life in the community,
(d) the views of such persons in relation to the exercise of those functions
should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and
linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant
in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and
exploitation,
(h) the community should be encouraged to apply and promote these
principles.
Under s 32, any medical or dental treatment that is carried out on such
people is carried out for the purpose of ‘promoting and maintaining
their health and well-being’. Under s 44(2) the tribunal must consider
the following when giving consent to treatment:
(a) the views (if any) of:
(i) the patient,
(ii) the person who is proposing that medical or dental treatment be
carried out on the patient,
(iii) any persons responsible for the patient, and
(b) the matters referred to in section 42(2); and
(c) the objects of this Part [meaning the promotion and maintenance of
health and wellbeing].
The ‘matters referred to in section 42(2)’ are:
(a) the grounds on which it is alleged that the patient is an incompetent
patient,
(b) the particular condition of the patient that requires treatment,
(c) the alternative courses of treatment that are available in relation to that
condition,
(d) the general nature and effect of each of those courses of treatment,
(e) the nature and degree of the significant risks (if any) associated with each
of those courses of treatment, and
(f) the reasons for which it is proposed that any particular course of
treatment should be carried out.
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and guardians: legislation and factors to consider
NT Adult Guardianship Act 1988
Section 4 states:
Every function, power, authority, discretion, jurisdiction and duty conferred or
imposed by this Act is to be exercised or performed so that:
(a) those means which are the least restrictive of a represented person’s
freedom of decision and action as is possible in the circumstances are
adopted;
(b) the best interests of a represented person are promoted; and
(c) the wishes of a represented person are, wherever possible, given effect
to
Qld Guardianship & Administration Act 2000
Section 12 of Sch 1 states:
(1) The ‘health care principle’ means power for a health matter, or special
health matter, for an adult should be exercised by a guardian, the adult
guardian, the tribunal, or for a matter relating to prescribed special health
care, another entity:
(a) in the way least restrictive of the adult’s rights; and
(b) only if the exercise of power:
(i) is necessary and appropriate to maintain or promote the adult’s
health or wellbeing; or
(ii) is, in all the circumstances, in the adult’s best interests.
(2) In deciding whether the exercise of a power is appropriate, the guardian,
the adult guardian, tribunal or other entity must, to the greatest extent
practicable:
(a) seek the adult’s views and wishes and take them into account; and
(b) take the information given by the adult’s health provider into account
(3) The adult’s views and wishes may be expressed:
(a) orally; or
(b) in writing, for example, in an advance health directive; or
(c) in another way, including, for example, by conduct.
SA Guardianship & Administration Act 1993
Section 5 states:
Where a guardian appointed under this Act, an administrator, the Public
Advocate, the Board or any court or other person, body or authority makes
any decision or order in relation to a person or a person’s estate pursuant to
this Act or pursuant to powers conferred by or under this Act:
(a) consideration (and this will be the paramount consideration) must be
given to what would, in the opinion of the decision maker, be the wishes
of the person in the matter if he or she were not mentally incapacitated,
but only so far as there is reasonably ascertainable evidence on which to
base such an opinion; and
(b) the present wishes of the person should, unless it is not possible or
reasonably practicable to do so, be sought in respect of the matter and
consideration must be given to those wishes; and
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and guardians: legislation and factors to consider
(c) consideration must, in the case of the making or affirming of a
guardianship or administration order, be given to the adequacy of existing
informal arrangements for the care of the person or the management of
his or her financial affairs and to the desirability of not disturbing those
arrangements; and
(d) the decision or order made must be the one that is the least restrictive
of the person’s rights and personal autonomy as is consistent with his or
her proper care and protection.
Tas Guardianship & Administration Act 1995
Section 6 states:
A function or power conferred, or duty imposed, by this Act is to be
performed so that:
(a) the means which is the least restrictive of a person’s freedom of decision
and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability or in respect of whom an
application is made under this Act are promoted; and
(c) the wishes of a person with a disability or in respect of whom an
application is made under this Act are, if possible, carried into effect.
Section 43(2) states:
For the purposes of determining whether any medical or dental treatment
would be in the best interests of a person to whom this Part applies, matters
to be taken into account by the person responsible include:
(a) the wishes of that person, so far as they can be ascertained; and
(b) the consequences to that person if the proposed treatment is not carried
out; and
(c) any alternative treatment available to that person; and
(d) the nature and degree of any significant risks associated with the
proposed treatment or any alternative treatment; and
(e) that the treatment is to be carried out only to promote and maintain the
health and wellbeing of that person; and
(f) any other matters prescribed by the regulations.
NB: the definition of ‘person responsible’ includes a guardian
appointed by the Guardianship Board: see [8.4.1].
Vic Guardianship & Administration Act 1986
Section 4(2) states:
It is the intention of Parliament that the provisions of this Act be interpreted
and that every function, power, authority, discretion, jurisdiction and duty
conferred or imposed by this Act is to be exercised or performed so that:
(a) the means which is the least restrictive of a person’s freedom of decision
and action as is possible in the circumstances is adopted; and
(b) the best interests of a person with a disability are promoted; and
(c) the wishes of a person with a disability are wherever possible given effect to.
Section 38(1) states:
In this Part, for the purposes of determining whether any special procedure
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= TABLE 8.2.2 Consent to treatment by guardianship authorities

and guardians: legislation and factors to consider
or any medical or dental treatment would be in the best interests of the
patient, the following matters must be taken into account:
(a) the wishes of the patient, so far as they can be ascertained; and
(b) the wishes of any nearest relative or any other family members of the
patient; and
(c) the consequences to the patient if the treatment is not carried out; and
(d) any alternative treatment available; and
(e) the nature and degree of any significant risks associated with the
treatment or any alternative treatment; and
(f) whether the treatment to be carried out is only to promote and maintain
the health and well-being of the patient; and
(g) any other matters prescribed by the regulations.
WA Guardianship & Administration Act 1990
Section 4(2)(a) states:
The primary concern of the State Administrative Tribunal shall be the best
interests of any represented person, or of a person in respect of whom an
application is made.
Section 51 states:
(1) Subject to any direction of the State Administrative Tribunal, a guardian shall
act according to his opinion of the best interests of the represented person.
(2) Without limiting the generality of subsection (1), a guardian acts in the
best interests of a represented person if he acts as far as possible—
(a) as an advocate for the represented person;
(b) in such a way as to encourage the represented person to live in the
general community and participate as much as possible in the life of
the community;
(c) in such a way as to encourage and assist the represented person
to become capable of caring for himself and of making reasonable
judgments in respect of matters relating to his person;
(d) in such a way as to protect the represented person from neglect,
abuse or exploitation;
(e) in consultation with the represented person, taking into account, as
far as possible, the wishes of that person as expressed, in whatever
manner, or as gathered from the person’s previous actions;
(f) in the manner that is least restrictive of the rights, while consistent
with the proper protection, of the represented person;
(g) in such a way as to maintain any supportive relationships the
represented person has; and
(h) in such a way as to maintain the represented person’s familiar cultural,
linguistic and religious environment.

8.3 Enduring powers of attorney

[8.3.1] What are enduring powers of attorney over health matters?
Enduring powers of attorney over health matters allow a person to

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appoint a substitute decision-maker with the power to make medical

decisions where the person has become incompetent. Unfortunately,
different terminology is used across Australia for these substitute
decision-makers.
Legislation for enduring powers of attorney over health in the
states and territories is listed in table 8.3.1.

TABLE 8.3.1 Legislation for enduring powers of attorney over

health
ACT Powers of Attorney Act 2006
NSW Guardianship Act 1987 Pt 2 (enduring guardian)
Qld Powers of Attorney Act 1998 Pt 3 (health attorney)
SA Consent to Medical Treatment & Palliative Care Act 1995 Pt 2
Div 3 (medical agent); Guardianship & Administration Act 1993
Pt 3 (enduring guardian)
Tas Guardianship & Administration Act 1995 Pt 5 (enduring
guardian)
Vic Guardianship & Administration Act 1986 Div 5A (enduring
guardian); Medical Treatment Act 1988 Pt 2 (medical agent)
WA Acts Amendment (Consent to Medical Treatment) Bill 2006 (not
yet enacted)

This chapter refers to the person who has created the power of attorney
as the donor, and to the person who is appointed as the attorney.
The ACT, New South Wales, Queensland, South Australia,
Tasmania and Victoria have implemented legislation allowing patients
to appoint attorneys with explicit power to be involved in medical
treatment. Western Australia is currently considering such laws. In
the ACT, South Australia and Victoria there are two types of health
power of attorney: enduring powers of attorney over health (called
enduring guardianship in South Australia and Victoria) and medical
agency. Both can be used to give an attorney the power to consent
to and refuse treatment, although there are some differences in the
way they must make their decisions: see [8.3.5].

[8.3.2] Can more than one attorney be appointed? Most states allow
for the creation of multiple attorneys. In Queensland, a person can
appoint as many ‘attorneys’ as they like, and can have them exercise
power jointly, severally, successively or alternatively. In New South
Wales, more than one enduring guardian can be appointed. In South

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Australia and Victoria, more than one person can be appointed, but the
attorneys cannot exercise the power jointly and the power must indicate
the order of priority. In Tasmania, two or more enduring guardians
can be appointed, and an alternative guardian can be named to act
if the others are unable to do so. In Victoria the alternative attorney
can only act after completing a statutory declaration to the effect that
the original agent is dead, incompetent or uncontactable.

[8.3.3] How does an enduring power of attorney become effective?

For an appointment to be effective, both donor and attorney must be
over 18. The instrument of attorney is normally prescribed by legisla-
tion, and requires the signature of the donor and one or two witnesses
(who should not include the attorney). An attorney or guardian is
sometimes also required to sign the power to indicate acceptance.
In some jurisdictions the power does not become effective until the
donor is incapacitated, or declared to be so by a medical practitioner. In
South Australia, the attorney must also produce the power of attorney
document to the practitioner caring for the donor for it to have effect.
In Tasmania the document appointing the enduring guardian must be
registered with the Guardianship Board to be effective.
In the ACT and South Australia, healthcare professionals can
be required to make sure that the donor’s decision to appoint an
attorney is an informed one by making sure that they know how the
appointment will work and when it will come into effect.

[8.3.4] Are there limits on the attorney’s powers? Attorneys in

all the relevant jurisdictions are given powers over the represented
person’s medical care. However, in some jurisdictions (including the
ACT and New South Wales) the donor can limit the types of treatment
decision that can be made by the attorney, and give instructions to
the attorney about the types of care they want to be given.
All jurisdictions limit the powers of attorney to certain kinds of
treatment, and exclude other, controversial treatments, such as non-
therapeutic sterilisation and abortion. The consent of guardianship
authorities or courts is necessary for these procedures. This is
discussed in [8.5.1].

[8.3.5] How should an attorney make a decision about consent

to treatment? An attorney’s primary duty is to follow the instruc-
tions in the power. All the Acts discussed allow for a general power

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to be granted to an attorney, but also make room for specific instruc-

tions to be given by the donor. The various legislative schemes also
map out the way in which decisions should be made for different
appointments.
The statutory factors that attorneys must consider when making
decisions about treatment are listed in table 8.3.5.

TABLE 8.3.5 Consent to treatment by attorneys: legislation

and factors to consider
ACT Guardianship & Management of Property Act 1991; Medical
Treatment Act 1994
Under s 13(b) an enduring power of attorney can be used to consent to:
(i) lawful medical treatment which is necessary for the wellbeing of the
donor; or
(ii) the donation of a body part, blood or tissue of the donor to another
person in accordance with the Transplantation and Anatomy Act 1978; or
(iii) the withholding or withdrawal of medical treatment.
Section 14 states:
(1) In exercising powers under an enduring power of attorney while the
donor is incapacitated, the donee shall act, so far as possible, as the
donor would have acted if the donor were not incapacitated.
(2) In doing so, the donee shall take into account:
(a) the need to prevent the donor from becoming destitute; and
(b) the desirability of maintaining, so far as possible, the donor’s style of
life as it was before the incapacity.
According to s 16, a medical agent under the Medical Treatment Act is
empowered to consent to the withdrawal of treatment, on the following
conditions:
(1) Subject to subsection (2), a grantee shall not request the withholding or
withdrawal of medical treatment from the grantor unless:
(a) the grantee has consulted a medical practitioner about:
(i) the nature of the grantor’s illness; and
(ii) any alternative forms of treatment that may be available to the
grantor; and
(iii) the consequences to the grantor of remaining untreated; and
(b) the grantee believes on reasonable grounds that if the grantor:
(i) were capable of making a rational judgment; and
(ii) were to give serious consideration to his or her own health and
wellbeing;
the grantor would request the withholding or withdrawal of medical
treatment from himself or herself.
(2) If the grantee is:
(a) aware the grantor has made a direction; and
(b) not aware that the direction has been revoked; the grantee may
request the withholding or withdrawal of medical treatment from the
grantor in accordance with the direction.
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= TABLE 8.3.5 Consent to treatment by attorneys: legislation

and factors to consider
Section 16(1)(a) requires attorneys not to request withholding treatment
unless they have been fully informed of the nature of the patient’s
illness and options for treatment.
NSW Guardianship Act 1987
Section 6E states that the enduring guardian may consent to
treatments when the power has been granted to them in the
instrument. Under s 32, any medical or dental treatment that is
consented for a patient to must be carried out for the purpose of
‘promoting and maintaining their health and well-being’.
Qld Powers of Attorney Act 1998
Attorneys must comply with the healthcare principle when making
healthcare decisions. Section 12 of Sched 1 states:
(1) The health care principle means that power for a health matter for an
adult should be exercised by an attorney:
(a) in the way least restrictive of the adult’s rights; and
(b) only if the exercise of power:
(i) is necessary and appropriate to maintain or promote the adult’s
health or wellbeing; or
(ii) is, in all the circumstances, in the adult’s best interests.
(2) In deciding whether the exercise of a power is appropriate, the attorney
must, to the greatest extent practicable:
(a) seek the adult’s views and wishes and take them into account; and
(b) take the information given by the adult’s health provider into account.
(3) The adult’s views and wishes may be expressed orally, in writing (for
example, in an advance health directive) or in another way, including, for
example, by conduct.
(4) The health care principle does not affect any right an adult has to refuse
health care.
SA Consent to Medical Treatment & Palliative Care Act 1995;
Guardianship & Administration Act 1993
Section 8(8) of the Consent to Medical Treatment & Palliative Care Act
states that:
The powers conferred by a medical power of attorney must be exercised
(a) in accordance with any lawful conditions and directions contained in the
medical power of attorney; and
(b) if the grantor of the power has also given an anticipatory direction—
consistently with the direction, and subject to those requirements, in
what the agent genuinely believes to be the best interests of the grantor.
Grantees, in South Australia, cannot refuse the natural administration
of food and water, palliative care or treatment which would return the
grantor to capacity.
Section 25(5) & (6) of the Guardianship & Administration Act states:
(5) Subject to this Act and the conditions, limitations or exclusions (if any)
stated in the instrument, an instrument appointing an enduring guardian
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= TABLE 8.3.5 Consent to treatment by attorneys: legislation

and factors to consider
authorises the appointee or, if there is more than one appointee, the
appointees jointly or severally (as the case may be):
(a) to exercise the powers at law or in equity of a guardian if the person
who makes the appointment subsequently becomes mentally
incapacitated; and
(b) in that event, to consent or refuse consent to the medical or dental
treatment of the person, except where the person has a medical
agent available and willing to act in the matter.
(6) The powers conferred by an instrument appointing an enduring guardian
must, unless the Board approves otherwise, be exercised in accordance
with any lawful directions contained in the instrument.
Tas Guardianship & Administration Act 1995
An enduring guardian must follow any lawful directions in the
instrument. Subject to any direction concerning consent, they have the
power to consent or refuse treatment on an assessment of the best
interests of the patient (ss 25(2)(e) & 32(5)).
Section 43(2) states:
For the purposes of determining whether any medical or dental treatment
would be in the best interests of a person to whom this Part applies, matters
to be taken into account by the person responsible include:
(a) the wishes of that person, so far as they can be ascertained; and
(b) the consequences to that person if the proposed treatment is not carried
out; and
(c) any alternative treatment available to that person; and
(d) the nature and degree of any significant risks associated with the
proposed treatment or any alternative treatment; and
(e) that the treatment is to be carried out only to promote and maintain the
health and wellbeing of that person; and
(f) any other matters prescribed by the regulations.
NB: the definition of ‘person responsible’ includes enduring guardians:
see [8.4.1].
Vic Guardianship & Administration Act 1986 (enduring guardian);
Medical Treatment Act 1988 (medical agent)
Under s 35B an enduring guardian is authorised to exercise powers
conferred in the instrument, including medical decisions. If the
instrument is silent on consent, the enduring guardian may consent to
treatment in the patient’s best interests.
Section 38(1) states:
In this Part, for the purposes of determining whether any special procedure
or any medical or dental treatment would be in the best interests of the
patient, the following matters must be taken into account:
(a) the wishes of the patient, so far as they can be ascertained; and
(b) the wishes of any nearest relative or any other family members of the
patient; and
(c) the consequences to the patient if the treatment is not carried out; and
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= TABLE 8.3.5 Consent to treatment by attorneys: legislation

and factors to consider
(d) any alternative treatment available; and
(e) the nature and degree of any significant risks associated with the
treatment or any alternative treatment; and
(f) whether the treatment to be carried out is only to promote and maintain
the health and well-being of the patient; and
(g) any other matters prescribed by the regulations.
A medical agent under this Act may consent to or refuse treatment.
Section 5B(2) states:
An agent or guardian may only refuse medical treatment on behalf of a
patient if:
(a) the medical treatment would cause unreasonable distress to the patient;
or
(b) there are reasonable grounds for believing that the patient, if competent,
and after giving serious consideration to his or her health and well-being,
would consider that the medical treatment is unwarranted.
However, the agent may not refuse palliative care (which is defined
to include the reasonable provision of food and water): see [11.3.2].
Agents should not request withholding treatment unless they have
been fully informed of the nature of the patient’s illness and options for
treatment.

8.4 Persons responsible

[8.4.1] Who are ‘persons responsible’? One of the major problems
with common law has been its failure to recognise the rights of
relatives to consent to medical treatment for adult incompetent
patients. If an incompetent person was an adult, neither their parents,
siblings, children or spouse had the power to consent to treatment on
their behalf. Only courts, using the power of parens patriae, could
consent to treatment. Control of treatment therefore fell mostly to
doctors, who could treat patients according to what they felt to be
in their best interests under the doctrine of necessity: see [6.4.1].
While it was common practice to ask relatives for consent, this
was unnecessary as a matter of law, although it was useful to help
determine the best interests of the patient.
Most states have now passed legislation granting rights to relatives
and close friends to consent to treatment.
In South Australia, legislation grants powers of consent to the
nearest relative, in the absence of a guardian. A relative is defined
to be:
• a spouse

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• a parent
• a person (not being a guardian appointed under the Act) who
acts in loco parentis in relation to the person
• a brother or sister over 18
• a son or daughter over 18.
In New South Wales, Queensland, Victoria, Tasmania and Western
Australia a priority system has been developed whereby a person
responsible can be chosen to consent to treatment (in Queensland
the person is referred to as a statutory health attorney). The person
responsible is chosen from a list of possible candidates, depending
on their availability and willingness to act as decision-maker. There
are several definitions of persons responsible in the various pieces of
legislation, but they all come into operation in an order of priority.
For example, in most states, the order for appointment of persons
responsible is as follows:
• a court or tribunal appointed guardian
• an enduring attorney or enduring guardian
• the person’s spouse, if they are in a close and continuing
relationship with the person (in New South Wales, Queensland
and Tasmania ‘spouse’ includes heterosexual and same-sex de
facto partners)
• an unpaid primary carer (people receiving a carer’s pensions
are not considered to be paid). A person who cared for the
patient before they were admitted to institutional care may still
be regarded as their carer
• a close friend or relative. A person is considered a close friend
or relative when they have maintained a close relationship
through frequent personal contact and have a personal interest
in the patient’s welfare.
In Victoria, a further hierarchy is given for relatives other than
spouses. The eldest member of the first category with an eligible
member over 18 is the person responsible:
• son or daughter
• father or mother
• brother or sister
• grandfather or grandmother
• grandson or granddaughter
• uncle or aunt
• nephew or niece.
In Queensland, another possible personal responsible is the Adult

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Guardian, who may be asked to consent as ‘statutory health attorney’

if no close friends or relatives are available.

Neither the Northern Territory nor the ACT has enacted person
responsible legislation. This means that in these territories carers,
relatives and close friends have no legal right to consent to the
!
treatment of incompetent patients. Decisions concerning treatment
are made by medical professionals using the concept of necessity:
see [6.4.1]. Alternatively, consent can be given by guardianship
authorities, or Supreme Courts.

As with guardians and those with enduring powers of attorney over

health matters, persons responsible are limited in the choices they
can make regarding treatment: see [8.5.1].
Legislation granting rights to carers and relatives in the states is
listed in table 8.4.1.

TABLE 8.4.1 Legislation granting rights to carers and relatives

NSW Guardianship Act 1987 Pt 5
Qld Powers of Attorney Act 1998 Ch 4 (statutory health attorney)
SA Guardianship & Administration Act 1993 s 59
Tas Guardianship & Administration Act 1995 Pt 6
Vic Guardianship & Administration Act 1986 Pt 4A
WA Guardianship & Administration Act 1990 s 119

[8.4.2] How should persons responsible make decisions? The

factors that must be considered by persons responsible are given
in table 8.4.2.

TABLE 8.4.2 Consent to treatment by persons responsible:

legislation and factors to consider
NSW Guardianship Act 1987
Section 46(2) states that:
A consent given by a person responsible for, or the guardian of, the patient
has no effect:
(a) if the person carrying out or supervising the proposed treatment is aware,
or ought reasonably to be aware, that the patient objects to the carrying
out of the treatment, or
(b) if the proposed treatment is to be carried out for any purpose other than
that of promoting or maintaining the health and well-being of the patient.
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= TABLE 8.4.2 Consent to treatment by persons responsible:

legislation and factors to consider
Qld Powers of Attorney Act 1998
Statutory health attorneys must comply with the healthcare principle
when making decisions. Section 12 of Sched 1 states:
(1) The health care principle means that power for a health matter for an
adult should be exercised by an attorney—
(a) in the way least restrictive of the adult’s rights; and
(b) only if the exercise of power—
(i) is necessary and appropriate to maintain or promote the adult’s
health or wellbeing; or
(ii) is, in all the circumstances, in the adult’s best interests.
(2) In deciding whether the exercise of a power is appropriate, the attorney
must, to the greatest extent practicable—
(a) seek the adult’s views and wishes and take them into account; and
(b) take the information given by the adult’s health provider into account.
(3) The adult’s views and wishes may be expressed orally, in writing (for
example, in an advance health directive) or in another way, including, for
example, by conduct.
(4) The health care principle does not affect any right an adult has to refuse
health care.
SA Guardianship & Administration Act 1993
Section 5 states that the relative who consents must consider the
following:
(a) consideration (and this will be the paramount consideration) must be
given to what would, in the opinion of the decision maker, be the wishes
of the person in the matter if he or she were not mentally incapacitated,
but only so far as there is reasonably ascertainable evidence on which to
base such an opinion; and
(b) the present wishes of the person should, unless it is not possible or
reasonably practicable to do so, be sought in respect of the matter and
consideration must be given to those wishes; and
(c) consideration must, in the case of the making or affirming of a
guardianship or administration order, be given to the adequacy of existing
informal arrangements for the care of the person or the management of
his or her financial affairs and to the desirability of not disturbing those
arrangements; and
(d) the decision or order made must be the one that is the least restrictive
of the person’s rights and personal autonomy as is consistent with his or
her proper care and protection.
Tas Guardianship & Administration Act 1995
Section 43(1) states:
A person responsible for a person to whom this Part applies may consent to
the carrying out of medical or dental treatment which is not special treatment
if he or she is satisfied that—
(a) the relevant person is incapable of giving consent; and
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= TABLE 8.4.2 Consent to treatment by persons responsible:

legislation and factors to consider
(b) the medical or dental treatment would be in the best interests of that
person.
Vic Guardianship & Administration Act 1986
Section 42H states:
(1) The person responsible for a patient may consent to the carrying out of
any medical or dental treatment.
(2) In determining whether or not to consent to medical or dental treatment,
the person responsible must act in the best interests of the patient.
Section 38(1) defines best interests:
In this Part, for the purposes of determining whether any special procedure
or any medical or dental treatment would be in the best interests of the
patient, the following matters must be taken into account—
(a) the wishes of the patient, so far as they can be ascertained; and
(b) the wishes of any nearest relative or any other family members of the
patient; and
(c) the consequences to the patient if the treatment is not carried out; and
(d) any alternative treatment available; and
(e) the nature and degree of any significant risks associated with the
treatment or any alternative treatment; and
(f) whether the treatment to be carried out is only to promote and maintain
the health and well-being of the patient; and
(g) any other matters prescribed by the regulations.
WA Guardianship & Administration Act 1990
There is no statement regarding in what circumstances a relative
should consent to treatment, but presumably the test is of best
interests, as the test is widely referred to in the legislation.

8.5 Prescribed and special treatments

[8.5.1] Are there limits to the types of decisions that substitute
decision-makers can make? Yes. Only the Supreme Court in each
jurisdiction has the unlimited parens patriae jurisdiction that allows it
to make any orders in the patient’s best interests. All other substitute
decision-makers, including guardianship authorities, are limited in
the types of treatment they can consent to. These treatments, usually
referred to as prescribed treatments or special treatments, can only
be consented to in the circumstances listed in table 8.5.1.

TABLE 8.5.1 Prescribed and special treatments: legislation

and types of treatment
ACT Guardianship & Management of Property Act 1991; Powers of
Attorney Act 2006
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= TABLE 8.5.1 Prescribed and special treatments: legislation

and types of treatment
A prescribed medical procedure is defined in the Dictionary of the
Guardianship & Management of Property Act as:
(a) an abortion; or
(b) reproductive sterilisation; or
(c) a hysterectomy; or
(d) a medical procedure concerned with contraception; or
(e) removal of non-regenerative tissue for transplantation to the body of
another living person; or
(f) treatment for psychiatric illness, convulsive therapy or psychiatric surgery;
or
(g) any other medical or surgical procedure prescribed for the purposes of
this definition.
Apart from treatment for psychiatric illness, convulsive therapy or
psychiatric surgery (consents for which must be obtained from the
Mental Health Tribunal: see chapter 13), the tribunal may consent to
prescribed medical procedures. Under s 70, this can occur only when it
is satisfied that:
(a) the procedure is otherwise lawful; and
(b) the person is not competent to give consent and is not likely to become
competent in the foreseeable future; and
(c) the procedure would be in the person’s best interests; and
(d) the person, the guardian and any other person whom the Tribunal
considers should have notice of the proposed procedure are aware of the
application for consent.
The tribunal must appoint the person’s guardian, or the community
advocate or some other independent person to represent the person in
connection with the inquiry relating to the consent.
Section 70(3) states:
In determining whether a particular procedure would be in the person’s best
interests, the matters that the tribunal shall take into account include:
(a) the wishes of the person, so far as they can be ascertained; and
(b) what would happen if it were not carried out; and
(c) what alternative treatments are available; and
(d) whether it can be postponed because better treatments may become
available; and
(e) in the case of a transplantation of tissue—the relationship between the 2
people.
Section 70 also states that the tribunal cannot consent to the removal
of non-regenerative tissue for transplantation to the body of another
living person unless, in addition to the matters specified above it is
satisfied that:
(a) the risk to the person from whom the tissue is to be taken is small;
and
(b) the risk of failure of the transplant is low; and
(c) the life of the person to whose body the tissue is to be transplanted
would be in danger if the transplant were not made; and
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= TABLE 8.5.1 Prescribed and special treatments: legislation

and types of treatment
(d) it is highly likely that transplanting such tissue from someone else would
be unsuccessful.
Under the Powers of Attorney Act (s 73) an enduring attorney cannot
make decisions regarding:
(a) removal of non-regenerative tissue from the principal while alive for
donation to someone else;
(b) sterilisation of the principal if the principal is, or is reasonably likely to be,
fertile;
(c) termination of the principal’s pregnancy;
(d) participation in medical research or experimental healthcare;
(e) treatment for mental illness;
(f) electroconvulsive therapy or psychiatric surgery;
(g) healthcare prescribed by regulation.
NSW Guardianship Act 1987; Guardianship Regulation
Special treatment means (s 3):
(a) any treatment that is intended, or is reasonably likely, to have the effect
of rendering permanently infertile the person on whom it is carried out,
or
(b) any new treatment that has not yet gained the support of a substantial
number of medical practitioners or dentists specialising in the area of
practice concerned, or
(c) any other kind of treatment declared by the regulations to be special
treatment for the purposes of this Part, but does not include treatment in
the course of a clinical trial.
The regulation also defines as ‘special treatment’ (r 8):
(a) any treatment that involves the administration of a drug of addiction
(other than in association with the treatment of cancer or palliative care
of a terminally ill patient) over a period or periods totalling more than 10
days in any period of 30 days,
(b) any treatment that is carried out for the purpose of terminating
pregnancy,
(c) any treatment in the nature of a vasectomy or tubal occlusion,
(d) any treatment that involves the use of an aversive stimulus, whether
mechanical, chemical, physical or otherwise.
Regulation 9 also includes the following as ‘special treatment’.
(a) any treatment that involves the administration to a patient of one or more
restricted substances for the purpose of affecting the central nervous
system of the patient, but only if the dosage levels, combinations or the
numbers of restricted substances used or the duration of the treatment
are outside the accepted mode of treatment for such a patient,
(b) any treatment that involves the use of androgen reducing medication for
the purpose of behavioural control.
The tribunal can give consent to special medical treatment if it is
satisfied that the treatment is necessary to save the patient’s life, or to
prevent serious damage to the patient’s health. In the case
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= TABLE 8.5.1 Prescribed and special treatments: legislation

and types of treatment
of treatments that will render a person permanently infertile, these
are the only circumstances in which the tribunal can give approval.
However, the tribunal is authorised in s 45 to give consent to new
and unsupported treatments (as described in (b) above) and other
prescribed special treatments apart from sterilisation, if it is satisfied
that:
(a) the treatment is the only or most appropriate way of treating the patient
and is manifestly in the best interests of the patient, and
(b) in so far as the National Health and Medical Research Council has
prescribed guidelines that are relevant to the carrying out of that
treatment – those guidelines have been or will be complied with as
regards the patient.
NT Adult Guardianship Act 1988
A major medical procedure is:
(a) a medical or dental procedure that does not remove an immediate threat
to a person’s health and which is generally accepted by the medical
profession or, as the case may be, dental profession as being of a major
nature; and
(b) a medical procedure relating to:
(i) contraception; or
(ii) the termination of a pregnancy.
Only the Local Court may consent to major medical procedures (s 21).
Qld Guardianship & Administration Act 2000
‘Special healthcare’ is defined to include:
(a) removal of tissue from the adult while alive for donation to someone
else;
(b) sterilisation of the adult;
(c) termination of a pregnancy of the adult;
(d) participation by the adult in special medical research or experimental
healthcare;
(e) electroconvulsive therapy or psychosurgery for the adult;
(f) prescribed special healthcare of the adult.
Under s 68 the tribunal is permitted to consent to special healthcare,
other than electroconvulsive therapy or psychosurgery. If the tribunal is
asked to consent to tissue donation, they must be satisfied that:
(a) the risk to the adult is small; and
(b) the risk of failure of the donated tissue is low; and
(c) the life of the proposed recipient would be in danger without the
donation; and
(d) no other compatible donor is reasonably available; and
(e) there is, or has been, a close personal relationship between the adult and
proposed recipient.
The tribunal may not consent to donation if the adult objects to the
removal of tissue.
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= TABLE 8.5.1 Prescribed and special treatments: legislation

and types of treatment
Under s 70 the tribunal may consent to sterilisation only if it is
satisfied that:
(a) one of the following applies:
(i) the sterilization is medically necessary;
(ii) the adult is, or is likely to be, sexually active and there is no method of
contraception that could reasonably be expected to be successfully
applied;
(iii) if the adult is female – the adult has problems with menstruation and
cessation of menstruation by sterilization is the only practicable way of
overcoming the problems; and
(b) the sterilisation can not reasonably be postponed; and
(c) the adult is unlikely, in the foreseeable future, to have capacity for
decisions about sterilisation.
Section 70 forbids sterilisation for eugenic reasons or for removing
the risk of pregnancy resulting from sexual abuse. It also requires the
tribunal to consider:
(a) alternative forms of healthcare, including other sterilization procedures,
available or likely to become available in the foreseeable future; and
(b) the nature and extent of short-term, or long-term, significant risks
associated with the proposed procedure and available alternative forms
of healthcare, including other sterilisation procedures.
The tribunal may consent to an abortion only if satisfied the termination
is necessary to preserve the adult from serious danger to her life or
physical or mental health.
The tribunal may also approve special medical research or
experimental healthcare if:
(a) the special medical research or experimental healthcare is approved by
an ethics committee;
(b) the risk and inconvenience to the adult and the adult’s quality of life is small;
(c) the special medical research or experimental healthcare may result in
significant benefit to the adult;
(d) the potential benefit can not be achieved in another way.
The tribunal may also consent to an adult’s participation in special
medical research or experimental healthcare if the tribunal is satisfied
that:
(a) the special medical research or experimental healthcare is approved by
an ethics committee;
(b) the risk and inconvenience to the adult and the adult’s quality of life is
small;
(c) the special medical research or experimental healthcare may result in
significant benefit to the adult or other persons with the condition;
(d) the special medical research or experimental healthcare can not
reasonably be carried out without a person who has or has had the
condition taking part;
(e) the special medical research or experimental healthcare will not unduly
interfere with the adult’s privacy.
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= TABLE 8.5.1 Prescribed and special treatments: legislation

and types of treatment
SA Guardianship & Administration Act 1993
Prescribed treatment means:
(a) termination of pregnancy;
(b) sterilisation;
(c) any other medical treatment prescribed by the regulations.
Under s 61 the board may consent to prescribed treatments, after
hearing any submissions from the patient’s parents. However, the
board cannot consent to a sterilisation unless:
(a) it is satisfied that it is therapeutically necessary for the sterilisation to be
carried out on the person; or
(b) it is satisfied:
(i) that there is no likelihood of the person acquiring at any time the
capacity to give an effective consent; and
(ii) that the person is physically capable of procreation; and
(iii) that:
(A) the person is, or is likely to be, sexually active, and there is no
method of contraception that could, in all the circumstances,
reasonably be expected to be successfully applied; or
(B) in the case of a woman, cessation of her menstrual cycle would be
in her best interests and would be the only reasonably practicable
way of dealing with the social, sanitary or other problems
associated with her menstruation,
Additionally the board must not have knowledge of any refusal on the
part of the person to consent to the carrying out of the sterilisation
made while the patient was competent.
The board cannot consent to a termination of pregnancy unless it is
satisfied:
(a) that the carrying out of the termination would not constitute an offence;
and
(b) that there is no likelihood of the woman acquiring the capacity to give an
effective consent within the period that is reasonably available for the safe
carrying out of the termination, and
(c) the Board has no knowledge of any refusal on the part of the woman to
consent to the termination.
Tas Guardianship & Administration Act 1995
Special treatment means:
(a) any treatment that is intended, or is reasonably likely, to have the effect of
rendering permanently infertile the person on whom it is carried out; or
(b) termination of pregnancy; or
(c) any removal of non-regenerative tissue for the purposes of
transplantation; or
(d) any other medical or dental treatment that is declared by the regulations
to be special treatment for the purposes of Part 6.
The regulations have included the following in the definition of special
treatment:
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= TABLE 8.5.1 Prescribed and special treatments: legislation

and types of treatment
(a) any treatment involving the administration of any drug of addiction, other
than in association with the treatment of cancer or palliative care of a
terminally ill patient, over a period or periods totalling more than 10 days
in any period of 30 days;
(b) psychosurgery, including any neurological procedure carried out for the
relief of the symptoms of Parkinson’s disease;
(c) any treatment involving the use of an aversive stimulus, whether
mechanical, chemical, physical or otherwise.
Section 45 permits the board to consent to special treatment when:
(a) the medical or dental treatment is otherwise lawful; and
(b) that person is incapable of giving consent; and
(c) the medical or dental treatment would be in the best interests of that
person.
The patient’s best interests are determined by examining:
(a) the wishes of that person, so far as they can be ascertained; and
(b) the consequences to that person if the proposed treatment is not carried
out; and
(c) any alternative treatment available to that person; and
(d) whether the proposed treatment can be postponed on the ground that
better treatment may become available and whether that person is likely
to become capable of consenting to the treatment; and
(e) in the case of transplantation of tissue, the relationship between the 2
persons concerned; and
(f) any other matters prescribed by the regulations.
Vic Guardianship & Administration Act 1986
A special procedure means:
(a) any procedure that is intended, or is reasonably likely, to have the effect
of rendering permanently infertile the person on whom it is carried out; or
…
(c) termination of pregnancy; or
(d) any removal of tissue for the purposes of transplantation to another
person; or
(e) any other medical or dental treatment that is prescribed by the
regulations to be a special procedure for the purposes of Part 4A.
Only the tribunal can consent to such treatments. Under s 42E, the
tribunal may only consent to the carrying out of a special procedure if it
is satisfied that the patient is incapable of giving consent and:
(a) if the patient is likely to be capable, within a reasonable time, of giving
consent, the special procedure:
(i) is a procedure to be carried out for the purposes of medical research;
and
(ii) would be in the patient’s best interests; or
(b) if the patient is not likely to be capable, within a reasonable time, of
giving consent, the special procedure would be in the patient’s best
interests.
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= TABLE 8.5.1 Prescribed and special treatments: legislation

and types of treatment
WA Guardianship & Administration Act 1990
Only sterilisations must go through the tribunal for consent. Section
57(1) states:
A person shall not carry out or take part in any procedure for the sterilization
of a represented person unless:
(a) both the guardian of the represented person and the state Administrative
Tribunal have consented in writing to the sterilization;
(b) all rights of appeal in respect of a determination under section 63 have
lapsed or been exhausted; and
(c) the sterilization is carried out in accordance with any condition imposed
under this Act.
Section 67 states that the tribunal can only organise this if the
sterilisation is in the person’s best interests.

8.6 Other issues

[8.6.1] Can substitute decision-makers consent to the withdrawal
of life-sustaining treatments? Yes. See chapter 11.

[8.6.2] What if there is disagreement between different substitute

decision-makers about a proposed treatment? In situations of con-
flict, it is best to seek mediation for a resolution of the dispute. Disputes
can often be resolved through each side successfully communicating
why they want a decision to be made in a particular way.
Ultimately disputes about treatment can be resolved either by
applying the hierarchy of decision-makers as set out in the person
responsible legislation, or by going to the guardianship authorities
or Supreme Courts.
In Queensland, situations of conflict are dealt with expressly
by s 42 of the Guardianship and Administration Act 2000, which
states that if there is a disagreement about a health matter and it
can not be resolved by mediation, the adult guardian may exercise
power.

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapters
11 & 12
McIlwraith J & Madden B, Health Care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 5

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[8.6.2] The Australian Medico–Legal Handbook

Skene L, Law and medical practice: rights, duties claims and

defences (2nd edn, 2004) LexisNexis, Sydney, chapter 5
Wallace M, Health care and the law (3rd edn, 2001) Lawbook Co,
Sydney, chapter 5

Cases
Re Marion (No 2) (1992) 17 Fam LR 336

112
 CHAPTER 9

Children and young people

9.1 Definitions
[9.1.1] What do the terms ‘child’, ‘minor’ and ‘young person’
mean? A child or minor is a person who is younger than the age of
majority – the age at which citizens can exercise all the civil rights
available to Australians. Currently the age of majority is 18. People
under that age lack certain legal rights. Some rights are not given to
children until they are 18 (for example, the right to vote or to be a
company director). Other rights are available, but might be exercised
on behalf of the child by someone who has parental responsibility
(for example, the right to consent to medical treatment or to enter
into a contract).
Some jurisdictions also recognise an intermediate category of
young person, which, depending on the jurisdiction, is a person aged
from 12 to 17, or 16 to 17.
Australian legislation that defines ‘young person’ is listed in
table 9.1.1.

TABLE 9.1.1 Legislation defining ‘young person’

ACT Children & Young People Act 1999 (age: 12 to 17)
NSW Children & Young Persons (Care & Protection) Act 1998 (age:
16 or 17)
Tas Children, Young Persons & Their Families Act 1997 (age: 16 or
17).

9.2 Children and consent

[9.2.1] Can a minor consent to medical treatment? At common
law there is a presumption that minors (people under 18) lack the
competence to consent to medical treatment: see chapter 8. This is
a presumption that can be rebutted, with the result that, if the minor
can show they have competence, the law will treat them as having
the right to consent to treatment.

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A minor is considered to be competent to consent to treatment

when the person ‘achieves a sufficient understanding and intelligence
to enable him or her to understand fully what is proposed’. This test
is sometimes referred to as the Gillick competence test.

Case example
In Gillick v West Norfolk AHA [1986] AC 112, the House of Lords
was asked to decide whether a local area clinic could give
contraception advice and treatment to girls under 16 without the
knowledge and approval of their parents.
The House of Lords accepted that once a child could
understand the nature and effects of the proposed treatment,
they could consent to it. Lord Scarman stated that parental rights
to consent to treatment terminate if and when the child achieves
‘sufficient understanding and intelligence to enable him or her to
understand fully what is proposed’.
Gillick was accepted in Australia in the High Court case of
Department of Health and Community Services (NT) v JWB
(Marion’s case): see [9.3.5].

There is a similar doctrine in the US and Canada that is referred to

as the mature minor test. The mature minor test states that if a minor
is mature enough to appreciate the consequences of a decision, and
mature enough to exercise the judgment of an adult, they can make
treatment decisions.

[9.2.2] Who has the responsibility to check for Gillick competence?

It is up to the medical practitioner to be satisfied that a minor has
sufficient understanding and intelligence to fully understand a
proposed treatment and thus validly consent to it.
While Gillick concerned teenagers, there is no age threshold for
competence. In the case of some very simple non-invasive procedures,
it may be argued that a relatively young child could consent. The
more complicated, and invasive, the procedure, the more difficult it
is for children to show competence.

[9.2.3] Is there legislation dealing with the competence of children?

Yes. Both New South Wales and South Australia have legislated for
the rights of children to consent to treatment. Under the New South
Wales Minors (Property and Contracts) Act 1970 children over 14
are presumed to be able consent to medical and dental treatment,
and their consent is to be treated as though an adult person had

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 Children and young people [9.3.1]

consented. The effect of this provision is to drop the age of majority

for the presumption of competence to 14 years. If a child is 14 or
older but is not competent, the presumption is rebutted, as it would
be for an incompetent adult.
The New South Wales Act also provides that a parent or guardian
can consent to medical or dental treatment for a child under 16, and
this consent is to be treated as though an adult had consented.
The Act does not provide for disagreement between a person aged
14, 15 or 16 and their parent or guardian. Where a person over 14
gives consent this should be sufficient, even if the parent or guardian
does not consent.

Although the New South Wales Act provides some clarification for
medical practitioners and dentists, it does not affect the underlying
common law Gillick competence test. Children may be found to be
!
Gillick competent below the age of 14.
NSW Health policy is that the consent of a parent or guardian
is required for patients under 14 (Circular 2004/84).

In South Australia the Consent to Medical Treatment and Palliative

Care Act 1995 provides that a person over 16 may consent to medical
treatment as validly and effectively as an adult.
This provision does not apply to the making of an advance directive
or the appointment of an agent to consent to treatment.

9.3 Parents and consent

[9.3.1] When can a parent consent to treatment? Generally speak-
ing, parental power to consent to treatment lasts until the age of
majority – 18 years. In New South Wales and South Australia, the
age of majority for consent has effectively been dropped to 14 and
16 years respectively: see [9.2.3]. However, if the child has Gillick
competence to consent to treatment, parental power to consent to
that treatment ceases even if the child is below the age of majority:
see [9.2.3].
Conversely, in situations where the child is not Gillick competent,
parental power to consent survives until the child is 18, and any
consent to treatment given by a parent is an effective bar to a claim
of battery or assault.

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[9.3.2] How should a parent make a decision about treatment?

Parents (and others with powers to consent on behalf of children; for
example, the courts) should consider the best interests of the child
when deciding whether to consent to treatment. The concept of ‘best
interests’ is very difficult to define, but it includes consideration of
medical and social factors and how they impact on the child’s life.
It is generally accepted that decisions should be based only on
consideration of the interests of the child and not on consideration
of the interests of others, such as siblings, the family unit or the
parents themselves.

Case example
In Re Marion (No 2) (1992) 17 Fam LR 336, Nicholson CJ of the
Family Court set out a checklist of factors for consideration when
determining the question of whether a treatment is in the best
interests of a child. While not definitive, the list is a useful starting
point for examining a child’s best interests. The factors are:
(1) The particular condition of the child which requires the procedure or
treatment;
(2) The nature of the procedure or treatment proposed;
(3) The reasons for which it is proposed that the procedure or treatment
be carried out;
(4) The alternative courses of treatment that are available in relation to
that condition;
(5) The desirability of and effect of authorising the procedure or treatment
proposed rather than the available alternatives;
(6) The physical effects on the child and the psychological and social
implications for the child of:
(a) authorising the proposed procedure or treatment
(b) not authorising the proposed procedure or treatment
(7) The nature and degree of any risk to the child of:
(a) authorising the proposed procedure or treatment
(b) not authorising the proposed procedure or treatment
(8) The views (if any) expressed by:
(a) the guardian(s) of the child;
(b) a person who is entitled to the custody of the child;
(c) a person who is responsible for the daily care and control of the
child;
to the proposed procedure or treatment and to any alternative
procedure or treatment.

[9.3.3] Who can give consent for a child if the parents are divorced
or separated? Parental responsibility is not affected by changes in
the relationship between the parents. Each parent has responsibility

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 Children and young people [9.3.5]

for the care and welfare of their children under 18 unless a court
(usually the Family Court) has made an order that one parent has
responsibility to the exclusion of the other. The court can stipulate
that a particular parent has specific responsibilities; for example,
healthcare decisions.
In the absence of a court order, either parent may consent to
medical treatment. If there is a dispute between the parents over
whether or not to consent to a treatment, they should be encouraged
to come to an agreement. If this is not possible, it may be appropriate
for an application to be made to the court to resolve the dispute.
Unless there are indications to the contrary, medical practitioners
should assume that either parent can consent, unless a court order
stipulating something different is brought to their attention.

[9.3.4] Can a person other than a parent consent to medical

treatment for a child? Yes. Children are often separated from their
biological parents. In these situations parental authority can be given
to a person in loco parentis (‘in the position of a parent’). Parental
rights to consent may be given to such a person; for example, parents
may give these rights to a school for emergency situations in which
the parents cannot be contacted.
Where a child is in the care of the state, parental powers to consent
to treatment are exercised by child welfare authorities.

[9.3.5] Are there treatments that parents cannot consent to? Yes.
In Australia, parents cannot consent to non-therapeutic medical
treatments offered for ‘social’ reasons rather than for the direct
treatment of ‘malfunction or disease’. Non-therapeutic treatments
include (but are not limited to) sterilisation for social reasons, bone-
marrow donation by children, gender reassignment and treatment
for gender dysphoria. The only bodies with the power to consent to
such treatments are the Supreme Courts in each state or territory, the
Family Court, and, in limited circumstances, guardianship tribunals
and boards: see [9.3.6].
Case examples
Sterilisation
In Department of Health and Community Services (NT) v JWB
(Marion’s case) (1992) 175 CLR 218, the High Court was asked
to consider the legality of parents consenting to the sterilisation
of their 14-year-old daughter, who was intellectually disabled and

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suffered from deafness, epilepsy and behavioural problems. The

parents believed that sterilisation to prevent menstruation and
pregnancy would be in her best interests, even though it would
not have been a treatment for a disease or disability.
The High Court found that parents did not have the power to
consent to non-therapeutic treatments. Therapeutic treatments
were defined as those attempting to treat or cure some
malfunction or disease. Non-therapeutic treatments might confer
a benefit, but they are not concerned with treating malfunction or
disease. The court held that the balance was in favour of judicial
consent for non-therapeutic treatments because of the need to
safeguard the interests of the person who lacked competence.
This means that such treatments can only go ahead after a
judicial determination that they are in the person’s best interests.
Bone marrow donation
In GWW and CMW (1997) FLC 92-748, the parents of a 10-
year-old boy sought approval for a donation of the child’s bone
marrow to be used in the treatment of his aunt’s leukaemia. The
child wished to make the donation. The Family Court found that
the child was not competent, and that the court, not the parents,
had the power to consent. The court said that such a procedure
should only be approved when it was in the child’s best interests,
and that in determining the child’s best interests regard should be
had for the relationship between the child and the recipient, the
value of a continued relationship with the recipient, and the risks
and discomforts of donation. The court approved the donation
because the balance was in favour of the donation being in the
child’s best interests.
In some jurisdictions there are also statutory mechanisms for
the donation of bone marrow: see [12.3.2].
Gender reassignment
Re A (a child) (1993) FLC ¶92-402 concerned a 14-year-old
genetic female with an extreme degree of masculinisation
due to abnormal adrenal gland activity. Because she did not
receive regular hormonal treatment in her early years further
masculinisation occurred, which led her treating doctors to
believe that she would fare better as a male than as a female.
The court held that the treatment was of a kind that required
court authorisation as a safeguard.
Hormonal treatment for gender identity dysphoria
Re Alex [2004] FamCA 297 concerned a 13-year-old genetic
female, Alex, who wanted to undergo hormonal treatment for
gender dysphoria. It was not clear to the judge that the treatment
was for a malfunction or disease, and he therefore held that the
treatment fell into the class of treatments that the courts need
to authorise. After reviewing the child’s best interests, the court
ordered that treatment be commenced.

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 Children and young people [9.4.1]

[9.3.6] Can a guardianship authority give approval for non-

therapeutic treatments? Yes, in New South Wales, Queensland and
South Australia. Ordinarily guardianship tribunals exercise juris-
diction over adult patients, but in those states the guardianship bodies
have jurisdiction over incompetent patients from the age of 16. This
creates some overlap between the jurisdiction of the courts and that
of the guardianship bodies in relation to children aged 16 and 17.

If there is a conflict between the orders of a guardianship body

and those of the Supreme or Family Court, the orders of the court
will override those of the guardianship authority. The jurisdiction of
!
guardianship authorities is more limited and prescribed than that of
the state Supreme Courts or the Family Court.

9.4 Children and refusal of treatment

[9.4.1] Can competent children refuse treatment? Logic would
suggest that if a child had sufficient maturity to consent to a medical
procedure, they should also be able to refuse consent. However, there
have been a number of English cases in which a court has overridden
a child’s refusal of medical treatment and forced them to undergo
treatment said to be in their best interests.
This position was largely put forward by Lord Donaldson MR,
who stated in Re R (a minor) (wardship: treatment) [1991] 3 WLR
593 that parental rights to consent to treatment remained effective
and were held jointly and severally with minors until their majority.
The result, according to this view, is that parents or courts cannot
override a competent consent by a minor, but they may override a
competent refusal. Lord Donaldson said in Re W (a minor) (medical
treatment) [1992] 4 All ER 627 at 639–40 that:

No minor of whatever age has power by refusing consent to treatment

to override a consent to treatment by someone who has parental
responsibility for the minor and a fortiori a consent by the court.

In Australia there is conflicting authority as to whether a competent

child may refuse medical treatment. McHugh J in Marion’s case
rejected Lord Donaldson’s argument. He found that:

the parent’s authority is at an end when the child gains sufficient

intellectual and emotional maturity to make an informed decision

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on the matter in question. Insofar as Re R… suggests anything to the

contrary it is inconsistent with Gillick.

However, since Marion’s case there have been a number of cases

where a child’s refusal has been overridden, some of which are
described below.

Case examples
In H and W (1995) FLC 92-598 Fogarty J and Kay J cited Lord
Donaldson’s view with approval, finding, at 81,947 that ‘where
a court is concerned with the welfare of a child, no question of
“self-determination” by a mature child can arise’.
In DOCS v Y [1999] NSWSC 644, the judge accepted the
court’s power to override a child’s competent refusal to accept
treatment for her eating disorder. However, this comment was
obiter, as the child was found to be incompetent due to the
disorder.
In Minister for Health v AS [2004] WASC 286, the court
approved a 15-year-old Jehovah’s Witness receiving a blood
transfusion against his will. The court found that the child’s Gillick
competence was a relevant but not determinative factor in the
question of whether to treat him, and that it was in his best
interests for the treatment to be approved.
In Royal Alexandra Hospital for Children v Joseph [2005]
NSWSC 422 (later affirmed: [2005] NSWSC 465), Joseph, a
Jehovah’s Witness over 16 years old, was being treated for acute
lymphoblastic leukaemia. The treatment necessitated blood
transfusions which Joseph refused, even thought his blood count
had fallen to life-threatening levels. The court heard the matter on
two occasions, and on both ordered the treatment to go ahead.

Given this trend towards the forced treatment of children, it is probable

that the current legal position is in favour of treatment even in the
face of a competent refusal. However, the law is in a state of flux
and, at the time of writing, the legal position is being considered by
the New South Wales Law Reform Commission.
What is the reason for the asymmetry between consent and
refusal by competent minors? The underlying psychological/ethical
explanation is presumably that, while a minor may be competent in a
technical sense, the courts have still regarded them as dispositionally
incompetent/non-autonomous by virtue of their inexperience and lack
of ability to appreciate such possibilities as that their fundamental
beliefs may change, or that they may adapt to aspects of treatment

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 Children and young people [9.5.1]

which at the time of refusal they regard as intolerable. It is notable

that the cases in which competent refusals have been overridden have
been those in which honouring the refusal would have resulted in
death or serious morbidity.

[9.4.2] Can parents refuse to give consent to treatment for their

children? Parents can only refuse to give consent to treatment when
the treatment is not in the child’s best interests. If the treatment is
in the child’s best interests, application can be made to the court to
treat the child and seek the appointment of guardians for the purpose
of consenting to the treatment.

Case example
In Re Heather [2003] NSWSC 532, an 11-year-old child and her
parents refused chemotherapy for the treatment of a malignant
tumour of the ovary. The parents had opted to treat the cancer
with a strict diet and ‘oxygen therapy’. After reviewing the medical
evidence the court ordered that the treatment be taken over by
the doctors and that chemotherapy be administered, as this was
in the child’s best interests.

In an emergency, parental consent can be waived: see [9.5.1].

9.5 Children and emergencies

[9.5.1] Can emergency medical treatment, such as a blood trans-
fusion, be given to a child without consent? The principles that
apply to adults and emergency treatment also apply to children: see
[6.4.1]. That is, if treatment is urgently required to save the child’s
life or prevent serious damage to their health, treatment may be
provided even if the consent of the child, parent or guardian has not
been obtained.
Courts can also authorise the treatment of a minor, even if the
child, parent or guardian refuses consent.
All jurisdictions have legislation that would allow a medical
practitioner to give a blood transfusion or other emergency treatment
to save a child’s life, even if the parents object.
However, if parents refuse the administration of blood products
(particularly for religious reasons), the health professional should:
• seek clarification from the parents about their concerns in
relation to specific blood products
• reassure the parents that their beliefs will be respected and that

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every effort will be made to avoid transfusion (through the

use of explicit transfusion triggers, blood salvage techniques,
iron supplements and recombinant products, such as
erythropoietin), and
• inform parents that, should the child’s life be in danger, blood
products will only be administered in the child’s best interests.
Parents should also be told that the decision to administer blood will
be made by the medical staff and not the parents.
Legislation authorising emergency medical treatment for children
or young people is listed in table 9.5.1.

TABLE 9.5.1 Legislation authorising emergency medical

treatment for children or young people
ACT Transplantation & Section 23 allows emergency blood
Anatomy Act 1978 transfusion to a child in the absence of
parental consent as long as 2 doctors agree
it is necessary.
NSW Guardianship Act Section 37 allows emergency medical
1987 treatment for people over 16 to save life or
prevent serious injury.
Children & Young Section 174 allows emergency medical
Persons (Care treatment for people under 18 to save life or
and Protection) prevent serious injury.
Act 1998
NT Emergency Sections 2 & 3 allow emergency operations
Medical (including blood transfusions) when parental
Operations Act consent not available and 2 doctors agree.
1973
Qld Transplantation & Section 20 allows blood transfusions (over
Anatomy Act 1979 parental refusal) necessary to preserve a
child’s life where 2 doctors agree (or the
medical superintendent of a base hospital
concurs).
SA Consent to Section 13 allows emergency treatment if
Treatment & there is an imminent risk to life or health and
Palliative Care Act 2 doctors agree in writing; parental refusal
1995 may be overridden if treatment is in the
child’s best interests.
Tas Human Tissue Act Section 21 allows blood transfusions (over
1985 parental refusal) if 2 doctors agree that
the child is in danger of dying and that the
transfusion is the best means of preventing
death.
=
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 Children and young people [9.6.2]

= TABLE 9.5.1 Legislation authorising emergency medical

treatment for children or young people
Vic Human Tissue Act Section 24 allows blood to be administered
1982 (over parental refusal) if 2 doctors agree that
the child is in danger of dying.
WA Human Tissue & Section 21 allows blood to be administered
Transplant Act (over parental refusal) if the child is in
1982 danger of dying.

9.6 Children, privacy and health records

[9.6.1] Do children have rights of privacy over their medical
records? Confidentiality and privacy are discussed in chapter 16.
Children have the same rights to confidentiality as adults, although
the situation is complicated by the rights of parents to consent to
treatment. There are also numerous privacy rights created by statute
that are discussed in chapter 16.
The federal Privacy Act 1988 does not specify age limits, and the
rights created under it, including rights of access, can be exercised
by competent children and young people. If a child or young person
is not competent to make their own privacy decisions, a parent can
exercise the child’s rights under the Act.
In the ACT and New South Wales a parent can exercise the child’s
rights over their medical records, but only until the child is of a suf-
ficient mental and emotional maturity to understand the nature of a
health service and give consent to it. Generally speaking, this would
mean that when the child is competent, the parents’ rights to access
the child’s medical information without consent is at an end.
As discussed above, there is a presumption in New South Wales
that a child is competent at 14 but shares decision-making powers
until 16, when there is a full presumption of competence to the
exclusion of the parent’s rights to control treatment. It is arguable
that this means that the parents’ rights to access their child’s medical
information without consent would normally cease at age 16 (unless
the presumption of the child’s competence was rebutted).
The position in Tasmania, Victoria and the Northern Territory
is less clear, but it would appear that competent minors would be
allowed to exercise rights under the respective Acts.

[9.6.2] Who can access a child’s medical records if the parents

are divorced or separated? As discussed above, each parent

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has responsibility for their children under the age of 18, unless a
court (usually the Family Court) has made an order that one parent
has responsibility to the exclusion of the other. If the child is not
competent, each parent has equal rights to access the child’s medical
records and to be informed of their medical condition in the absence
of court orders to the contrary.

9.7 Children and tissue donation

[9.7.1] Can children donate tissue and organs? This issue is dealt
with in chapter 12.
9.8 Reporting child abuse
[9.8.1] Do I have to report suspected child abuse? Yes. This issue
is discussed at [19.3.2].

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapter 12
New South Wales Law Reform Commission, Issues Paper 24: Minors’
consent to medical treatment (2004) NSWLRC, Sydney, Part 9
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 5
Skene L, Law and medical practice: rights, duties claims and
defences (2nd edn, 2004) LexisNexis, Sydney, chapter 4

Cases
Department of Health and Community Services (NT) v JWB
(Marion’s case) (1992) 175 CLR 218
DOCS v Y [1999] NSWSC 644
Gillick v West Norfolk AHA [1986] AC 112
H and W (1995) ¶FLC 92-598
Minister for Health v AS [2004] WASC 286
Re A (a child) (1993) FLC ¶92-402
Re Alex [2004] FamCA 297
Re GWW and CMW (1997) FLC ¶92-748
Re Heather [2003] NSWSC 532
Re Marion (No 2) (1992) 17 Fam LR 336
Re R (a minor) (wardship: treatment) [1991] 3 WLR 593
Re W (a minor) (medical treatment) [1992] 4 All ER 627
Royal Alexandra Hospital for Children v Joseph [2005] NSWSC 465

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 CHAPTER 10

Competent patients and end-of-

life decisions
10.1 Death
[10.1.1] What is the definition of death? The common law approach
to defining death has been to rely on the definition given by the
medical profession. Cessation of the circulatory system, brain death
and brain stem death have all been accepted as satisfying the common
law definition.

Case example
Re A [1992] 3 Med LR 303 concerned a child who had no brain
stem function. The trial judge found that even though the child’s
autonomous functions were being carried on by artificial means,
the child had died when his brain stem had ceased to function.

Following the Australian Law Reform Commission’s Report on human

tissue transplants (1977), death has been defined legislatively in
all jurisdictions except South Australia and Western Australia as:
• irreversible cessation of all function of the person’s brain, or
• irreversible cessation of circulation of blood in the person’s
body.
In South Australia and Western Australia, if a person’s respiration
and circulation are being maintained by artificial means post-mortem
taking of tissues can only occur if that person has total cessation
of brain function. This would appear to coincide with the other
jurisdictions’ definitions of death.
The relevant legislation in the states and territories is listed in
table 10.1.1.

[10.1.2] How is death certified? Death certificates are discussed

in [20.4.1]–[ 20.4.3].

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[10.1.3] The Australian Medico–Legal Handbook

TABLE 10.1.1 Legislation defining death

ACT Transplantation & Anatomy Act 1978 s 45
NSW Human Tissue Act 1983 s 33
NT Human Tissue Transplant Act 1979 s 23
Qld Transplantation & Anatomy Act 1979 s 45
SA Transplantation & Anatomy Act 1983 s 24
Tas Human Tissue Act 1985 s 27A
Vic Human Tissue Act 1982 s 41
WA Human Tissue & Transplant Act 1982

[10.1.3] When should deaths be reported to the coroner? The

office of the coroner was discussed in [3.4.4].
The coroner’s primary role is to investigate unnatural, accidental,
violent or suspicious death. Each jurisdiction defines a number of
reportable deaths that must be reported to the police or the coroner.
Coroners have a discretion as to whether they will hold an inquest
into a reported death. All jurisdictions provide for mandatory inquests
in particular circumstances, and empower government officials to
order the coroner to hold an inquest.
Legislation dealing with reportable deaths is listed in table
10.1.3.

TABLE 10.1.3 Reportable deaths: legislation and grounds for

reporting
ACT Coroners Act 1997
Under s 77, a death is reportable if there are reasonable grounds to
believe that the coroner would have jurisdiction to hold an inquest.
Under s 13:
(1) A coroner must hold an inquest into the manner and cause of death of a
person who—
(a) is killed; or
(b) is found drowned; or
(c) dies, or is suspected to have died, a sudden death the cause of
which is unknown; or
(d) dies under suspicious circumstances; or
(e) dies during or within 72 hours after, or as a result of—
(i) an operation of a medical, surgical, dental or like nature; or
(ii) an invasive medical or diagnostic procedure;
other than an operation or procedure prescribed by regulation to
be an operation or procedure to which this paragraph does not
apply; or
=
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 Competent patients and end-of-life decisions [10.1.3]

= TABLE 10.1.3 Reportable deaths: legislation and grounds for

reporting
(f) dies and a doctor has not given a certificate about the cause of death;
or
(g) dies not having been attended by a doctor at any time within the
period commencing 3 months before the death; or
(h) dies after an accident where the cause of death appears to be directly
attributable to the accident; or
(j) dies, or is suspected to have died, in circumstances that, in the
opinion of the Attorney-General, should be better ascertained; or
(k) dies in custody.
Inquests are mandatory for deaths in custody and for deaths under, or
as a result of, the administration of, an anaesthetic used in a medical,
surgical or dental operation (s 14(2)).
NSW Coroners Act 1980
Under s 12A, a death is reportable when a person has reasonable
grounds to believe that the death would be examinable by a coroner.
Under s 13:
(1) A coroner has jurisdiction to hold an inquest concerning the death or
suspected death of a person if it appears to the coroner that the person
has died, or that there is reasonable cause to suspect that the person
has died, in any of the following circumstances:
(a) the person died a violent or unnatural death,
(b) the person died a sudden death the cause of which is unknown,
(c) the person died under suspicious or unusual circumstances,
(d) a medical practitioner has not given a certificate as to the cause of
death,
(e) the person was not attended by a medical practitioner within the
period of 3 months immediately preceding his or her death or
suspected death,
(f) the person died while under, or as a result of, or within 24 hours after
the administration of, an anaesthetic administered in the course of a
medical, surgical or dental operation or procedure or an operation or
procedure of a like nature, other than a local anaesthetic administered
solely for the purpose of facilitating a procedure for resuscitation from
apparent or impending death,
(g) the person died within a year and a day after the date of any accident
to which the cause of his or her death or suspected death is or may
be attributable,
(h) the person died while in or temporarily absent from a hospital within
the meaning of the Mental Health Act 1990 and while the person was
a resident at the hospital for the purpose of receiving care, treatment
or assistance.
Under s 13A, the coroner may hold an inquest into the death of a
person who has died in custody.
Under s 13AB, the coroner may hold an inquest into the death of:
(a) a child in care, or
=
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= TABLE 10.1.3 Reportable deaths: legislation and grounds for

reporting
(b) a child in respect of whom a report was made under Part 2 of Chapter 3
of the Children and Young Persons (Care and Protection) Act 1998 within
the period of 3 years immediately preceding the child’s death, or
(c) a child who is a sibling of a child in respect of whom a report was made
under Part 2 of Chapter 3 of the Children and Young Persons (Care and
Protection) Act 1998 within the period of 3 years immediately preceding
the child’s death, or
(d) a child whose death is or may be due to abuse or neglect or that occurs
in suspicious circumstances, or
(e) a person (whether or not a child) who, at the time of the person’s death,
was living in, or was temporarily absent from, residential care provided by
a service provider and authorised or funded under the Disability Services
Act 1993 or a residential centre for handicapped persons, or
(f) a person (other than a child in care) who is in a target group within the
meaning of the Disability Services Act 1993 who receives from a service
provider assistance (of a kind prescribed by the regulations) to enable the
person to live independently in the community.
NT Coroners Act 1993
Under s 12(1), a death is reportable when it is a death:
(a) …
(iv) that appears to have been unexpected, unnatural or violent or to
have resulted, directly or indirectly, from an accident or injury;
(v) that occurred during an anaesthetic;
(vi) that occurred as a result of an anaesthetic and is not due to natural
causes;
(vii) of a person who, immediately before death, was a person held in
care or custody;
(viii) that was caused or contributed to by injuries sustained while the
person was held in custody; or
(ix) of a person whose identity is unknown.
Under s 12(3):
A medical practitioner who is present at or after the death of a person shall
report the death as soon as possible to a coroner if—
(a) the death is a reportable death;
(b) the medical practitioner does not view the body of the deceased person;
or
(c) the medical practitioner is unable to determine the cause of death.
Qld Coroners Act 2003
Under s 8(3), a person’s death is reportable where:
(a) it is not known who the person is; or
(b) the death was a violent or otherwise unnatural death; or
(c) the death happened in suspicious circumstances; or
(d) the death was not reasonably expected to be the outcome of a health
procedure; or
=
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= TABLE 10.1.3 Reportable deaths: legislation and grounds for

reporting
(e) a cause of death certificate has not been issued, and is not likely to be
issued, for the person; or
(f) the death was a death in care; or
(g) the death was a death in custody.
SA Coroners Act 2003
Under s 3, a ‘reportable death’ is a death:
(a) by unexpected, unnatural, unusual, violent or unknown cause; or
(b) on an aircraft during a flight, or on a vessel during a voyage; or
(c) in custody; or
(d) that occurs during or as a result, or within 24 hours, of—
(i) the carrying out of a surgical procedure or an invasive medical or
diagnostic procedure; or
(ii) the administration of an anaesthetic for the purposes of carrying out
such a procedure, not being a procedure specified by the regulations
to be a procedure to which this paragraph does not apply;
(e) that occurs at a place other than a hospital but within 24 hours of—
(i) the person having been discharged from a hospital after being an
inpatient of the hospital; or
(ii) the person having sought emergency treatment at a hospital; or
(f) where the person was, at the time of death—
(i) a protected person under the Aged and Infirm Persons’ Property
Act 1940 or the Guardianship and Administration Act 1993; or
(ii) in the custody or under the guardianship of the Minister under the
Children’s Protection Act 1993; or
(iii) a patient in an approved treatment centre under the Mental Health
Act 1993; or
(iv) a resident of a licensed supported residential facility under the
Supported Residential Facilities Act 1992; or
(v) accommodated in a hospital or other treatment facility for the
purposes of being treated for drug addiction; or
(g) that occurs in the course or as a result, or within 24 hours, of the person
receiving medical treatment to which consent has been given under Part
5 of the Guardianship and Administration Act 1993; or
(h) where no certificate as to the cause of death has been given to the
Registrar of Births, Deaths and Marriages; or
(i) that occurs in circumstances prescribed by the regulations.
Tas Coroners Act 1995
Under s 3, a ‘reportable death’ includes a death:
(a)…
(iv) that appears to have been unexpected, unnatural or violent or to
have resulted directly or indirectly from an accident or injury; or
(v) that occurs during anaesthesia or sedation; or
(vi) that occurs as a result of anaesthesia or sedation and is not due to
natural causes; or
(vii) the cause of which is unknown; or
=
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= TABLE 10.1.3 Reportable deaths: legislation and grounds for

reporting
(viii) of a child under the age of one year which was sudden and
unexpected; or
(ix) of a person who immediately before death was a person held in care
or a person held in custody; or
(x) of a person whose identity is unknown; or
(xi) that occurs at, or as a result of an accident or injury that occurs at,
the deceased person’s place of work, and does not appear to be
due to natural causes
…
as well as a death that occurred in custody ((c), (d)).
Vic Coroners Act 1985
Under s 3, a ‘reportable death’ includes a death:
…
(e) that appears to have been unexpected, unnatural or violent or to have
resulted, directly or indirectly, from accident or injury; or
(f) that occurs during an anaesthetic; or
(g) that occurs as a result of an anaesthetic and is not due to natural
causes; or
(h) that occurs in prescribed circumstances; or
(i) of a person who immediately before death was a person held in care; or
(iaa) of a person who immediately before death was a patient within the
meaning of the Mental Health Act 1986 but was not a person held in
care; or
(ia) of a person under the control or care of the Secretary to the
Department of Justice or a member of the police force; or
(ib) of a person in respect of whom a court has made a non-custodial
supervision order under section 26 of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997; or
(j) of a person whose identity is unknown
or for which a death certificate has not been issued ((k), (l)).
There is also a class of reviewable death that must be reported to
the coroner. A reviewable death is the second or subsequent death of a
child to a parent (s 3).
WA Coroners Act 1996
Under s 3, a ‘reportable death’ includes a death:
(a) that appears to have been unexpected, unnatural or violent or to have
resulted, directly or indirectly, from injury;
(b) that occurs during an anaesthetic;
(c) that occurs as a result of an anaesthetic and is not due to natural causes;
(d) that occurs in prescribed circumstances;
(e) of a person who immediately before death was a person held in care;
(f) that appears to have been caused or contributed to while the person was
held in care;
(g) that appears to have been caused or contributed to by any action of a
member of the Police Force;
=
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 Competent patients and end-of-life decisions [10.2.2]

= TABLE 10.1.3 Reportable deaths: legislation and grounds for

reporting
(h) of a person whose identity is unknown . . .
or for which a death certificate has not been issued ((i), (j)).

10.2 Competent patients and refusal of life-

sustaining treatment
[10.2.1] Do competent patients have a right to refuse treatment
when that will lead to their deaths? The test for competence is
discussed in [7.1.1]–[7.1.8].
Adults are presumed to be competent, and an adult’s decision
concerning treatment is binding even if others do not regard it as
reasonable or sensible. Apart from the situations described in [10.2.2]–
[10.2.3], decisions to refuse treatment must be respected even
when the person may die as a result of its being withheld or with-
drawn.
Case example
B v NHS Trust [2002] EWHC 429 (Fam) concerned a quadriplegic
and ventilator-dependent patient who, after several months
without improvement, requested that the ventilation be
withdrawn, having created an advance directive to that effect.
Part of the treatment team argued that she was depressed and
hence incompetent, with the result that her wishes could be
ignored and treatment continued.
The judge rejected this argument, found her to be competent
and free to request the withdrawal of treatment, and upheld her
decision. Nominal damages were ordered for the unauthorised
treatment, and the patient died following the treatment
withdrawal.

[10.2.2] Are there patients who cannot refuse treatment? Logically,

incompetent patients cannot refuse treatment. The decisions of
incompetent patients to refuse treatment are not binding on substitute
decision-makers, although they may be of relevance to the substitute
decision-making process.
Patients regulated by mental health legislation may also be subject
to orders requiring them to accept treatment: see [13.3.1].
Prisoners and detainees may also be forcibly tested and treated in
some jurisdictions. For example, s 77 of the Crimes (Administration
of Sentences) Act 1999 (NSW) allows prison authorities to order

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compulsory treatment when it is necessary to save a prisoner’s life

or prevent serious damage to their health.
Children also have limited rights to refuse treatment: see
[9.4.1].

[10.2.3] Are there limits to the right to refuse treatment? Common

law recognises a number of public interests that may override a
competent patient’s decision to refuse treatment. For example,
the public interest against suicide is said to override a competent
person’s decision to refuse life-sustaining treatment made necessary
by self-harm.
Suicide and attempted suicide are not crimes, but some jurisdictions
nevertheless provide protection to people who use force to prevent
a person committing suicide. The relevant laws are listed in table
10.2.3.

TABLE 10.2.3 Legislation relating to the prevention of suicide

ACT Crimes Act 1900 s 18
NSW Crimes Act 1900 s 574B
SA Criminal Law Consolidation Act 1935 s 13
Vic Crimes Act 1958 s 463B

Case example
Re Kinney (unreported, VSC, Fullagar J, 23 December 1988)
concerned a man who had unsuccessfully attempted suicide
after allegedly murdering his mother-in-law. His wife sought a
court order to prevent medical treatment being administered so
that he could die in accordance with his suicide note. Fullagar J
refused to prevent the treatment on the grounds that it would be
tantamount to aiding and abetting a suicide attempt.

Another example of a public interest that might override a competent

refusal comes from public health law. Courts from other common law
jurisdictions have used this to justify compulsorily treating people
with infectious disease. Legislation regulating the treatment of
infectious diseases often provides for a patient to be treated without
their consent: see chapter 14.

[10.2.4] Can patients demand treatments that health professionals

think are inappropriate? Generally speaking, health professionals

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cannot be forced to provide a treatment that they do not consider appro-

priate. While the law respects a patient’s decision to refuse treatment, it
does not give them power to demand treatment. Treatments can be chosen
from those offered; if a treatment is not offered, the law will generally
not require it to be offered against the health professional’s judgment.

Case example
R (On the Application of Burke) v General Medical Council
[2006] QB 273 concerned a patient with spinocerebellar ataxia,
a condition that would eventually require him to receive artificial
nutrition and hydration, who sought to review the General Medical
Council’s policy Withholding and withdrawing life-prolonging
treatments: good practice in decision-making. The patient
believed the policy breached his human rights because it did
not recognise his right to make an advance directive requesting
artificial nutrition and hydration to be provided when he was no
longer competent (see [10.3.2] for more on advance directives).
Instead the policy focused solely on the right of patients to refuse
treatments, and, in the absence of an advance directive, the
right of doctors to withdraw treatments. The patient argued that
the policy allowed a doctor to withdraw artificial nutrition and
hydration from him when he became incompetent, even though
he wished for it to be continued.
The Court of Appeal of England and Wales did not agree with
the patient. It found that the patient could not demand artificial
nutrition and hydration by means of an advance directive. The
advance directive could consent to treatment, but only treatment
that health professionals were offering at the time. The court
stated that at common law the doctor’s duty was to provide
a range of treatment options. If the patient sought another
treatment that the doctor believed was not clinically indicated, the
doctor was not under a legal duty to provide it.

There are two situations in which the courts may review decisions
by health professionals not to provide treatments:
• when the decision has been made illegally (for example,
a decision not to provide treatment to a person because
of their marital status would breach laws against sexual
discrimination)
• where the decision has been made on the basis of an incorrect
assessment of the patient’s condition (for example, where a
treatment is said to be futile but the judgment of futility is
based on a misdiagnosis).

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Case examples
In both Pearce v South Australian Health Commission (1996)
66 SASR 486 and McBain v State of Victoria (2000) 99 FCR
116, decisions not to provide artificial reproductive assistance to
women because of their martial status were said to breach the
federal Sex Discrimination Act. In both cases state legislation
limiting access to such treatments was overturned.
In Northridge v Central Sydney Area Health Service [2000]
NSWLR 1241, a decision to withhold active treatment from a
brain-damaged patient was overturned because it was found that
the doctors had misdiagnosed the patient’s condition and that the
decision had been made prematurely. As such the treatment was
not futile, and the decision to withhold it was not in the patient’s
best interests.

10.3 Advance care planning and advance

directives
[10.3.1] What is advance care planning? The common law’s
focus on patient autonomy supports an approach to patient care that
encourages thought and discussion about the patient’s wishes for the
future. Advance care planning is a process of preparation for:

likely scenarios near the end of life which ordinarily includes

assessment of, and dialogue about, a person’s understanding of their
medical history and condition, values, preferences, and personal and
family resources (Jordens et al., 2005).

It necessarily involves health professionals in a treatment team

working with the patient, or the patient’s substitute decision-makers,
to chart a course regarding the patient’s future care.
Advance care planning employs a number of approaches, including
the use of advance directives (discussed at [10.3.2]) or the appointment
of substitute decision-makers (see chapter 11). The main focus is
to educate patients about treatment options, get them to think about
what course they would like their treatment to take, then put in place
mechanisms to ensure that their wishes will be respected.

[10.3.2] What are advance directives? Advance directives record

decisions made by patients about what medical treatments they would
like in the future if, at some point, they can no longer make decisions
for themselves. Advance directives ordinarily record decisions
refusing life-sustaining treatments, but they can contain the patient’s

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preferences and desires about a range of treatment matters.

In Australia the right to make an advance directive is sourced
in common law, but it has also been legislated in most states and
territories. In all jurisdictions with legislative schemes (with the
possible exceptions of Queensland and South Australia) the common
law has been preserved, so that it is still possible to make an advance
directive at common law as well as under the legislation.
The legal position in the states and territories is described in
table 10.3.2.

TABLE 10.3.2 Advance directives: common law and legislative

recognition
Common law recognition? Legislative scheme?
ACT Yes Yes (Medical Treatment (Health
Directions) Act 2006)
NSW Yes No, but see NSW Health policy
Using advance care directives
(2004)
NT Yes Yes (Natural Death Act 1988)
Qld No. While s 39 Powers of Yes (Powers of Attorney Act
Attorney Act 1998 states that 1998)
common law is preserved, it
appears that the Guardianship
& Administration Act 2000 may
have unintentionally repealed
the common law
SA No. The common law does not Yes (Consent to Medical
appear to have been preserved Treatment & Palliative Care Act
in the Consent to Medical 1995)
Treatment & Palliative Care Act
1995
Tas Yes No
Vic Yes Yes (Medical Treatment Act
1988)
WA Yes No; but see Acts Amendment
(Consent to Medical Treatment)
Bill 2006 which at the time of
writing was being considered
by parliament

[10.3.3] What does the common law require of an advance direc-

tive before it becomes binding? The common law does not require
that advance directives take a particular form, or even be in writing.

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Of course, an oral directive will face significant evidential hurdles,

and most people who make an advance directive do so in writing.
The requirements for a common law directive are discussed
below.

The patient must have been competent when the directive was
made
A patient must have been competent to make the directive at the
time it was made. Adults are presumed to be competent, so they
must be shown to have been incompetent before the directive can
be ignored.
The rules concerning competence are discussed in chapter 7.

Case example
NHS Trust v T [2004] EWHC 1279 (Fam) concerned a 37-year-
old woman with borderline personality disorder who made an
advance health directive refusing blood products, because she
believed her blood to be evil. She had a history of repeated
bloodletting causing chronic anaemia, which had led on this
occasion to emergency hospital admission. A judge asked to
assess the validity of the directive felt there was compelling
evidence that the woman had not been competent at the time it
was made.

It is not open to health professionals to ignore a directive because

they have not had an opportunity to discuss the treatment with the
patient. Patients also do not have to prove that they understood the
full nature and effect of their decision for it to be binding on the
healthcare provider.

Case example
Malette v Schulman (1990) 67 DLR (4th) 321 concerned a woman
who presented to an emergency department unconscious and
with serious injuries. Health professionals found a card on her
person stating that she was a practising Jehovah’s Witness and
that she wished not to be given blood under any circumstances.
The doctor decided to provide blood because he had been
unable to discuss treatment options with the patient, and he
believed her decision to refuse blood was uninformed.
This argument was rejected by the court. The card was an
effective means of communicating the patient’s refusal of blood,
and clearly applied to the circumstances that had arisen. The
doctor was not free to disregard her decision merely because

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there had not been an opportunity to discuss the treatment

options.

The advance directive must have been intended to apply in the

circumstances
The advance directive must clearly have been intended by the patient
to apply to the circumstances that have arisen. Normally this will
require an examination of the words used in setting out the decision.
Vague and general instructions may not provide clear guidance as to
whether they should apply in the patient’s particular situation.
If there is evidence that an advance directive has been revoked
its directions should not be followed, at least until a determination
can be made by a judicial body.

Case example
HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam) concerned
a 24-year-old female Jehovah’s Witness who had signed an
advance directive, but two years later had promised to convert to
Islam after becoming engaged to a Muslim. The woman needed
blood after an operation. The judge found the woman’s promise
to convert to Islam to be an ‘essential and compelling aspect’
for finding that the advance directive was no longer intended to
apply.

The patient must not have been unduly influenced into making the
directive
An issue related to competence is undue influence (Stewart & Lynch,
2003). This occurs when pressure on a patient becomes so strong
that the patient’s will is overborne and a decision is made that does
not reflect their wishes.
The courts have stated that when examining undue influence, both
the patient’s strength of will and the relationship between the patient
and the person bringing the pressure to bear must be considered. If
a patient’s will is impaired by illness, pain or drugs, and pressure is
brought to bear by someone who has a close relationship with them,
it may be that the patient is unable to make a free choice. This may
invalidate the recorded decision.

Case example
Re T (An Adult) (Consent to Medical Treatment) [1992] 2 Fam
458 concerned a woman who had decided to refuse blood
products after she was injured in a car accident. The court found

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that the woman’s mother, who was a Jehovah’s Witness, had

exerted undue pressure to make her refuse the treatment before
she became incapacitated. The woman’s decision was therefore
invalid, and treatment could be provided according to her best
interests. The court did not feel that there was enough evidence
to support the directive, given that the patient was in extreme pain
and under the influence of drugs, and that she had changed her
mind about blood transfusions after being persuaded to do so by
her mother.

[10.3.4] What does legislation require of an advance directive

before it becomes binding? Generally speaking, the legislative
regimes are more limited in the way they recognise and enforce
advance directives. Each jurisdiction has its own form for making an
advance directive, controls on when the directive becomes effective,
and the types of treatments that may be refused. All jurisdictions with
legislation require the author of the directive to be at least 18.
State and territory legislation dealing with advance directives is
listed in table 10.3.4.

TABLE 10.3.4 Advance directives: legislation and

requirements
ACT Medical Treatment (Health Directions) Act 2006
• Name: health direction.
• Form: can be written or oral (s 7(2)). If written, must be on form
approved under s 21 (if any) (s 8).
• Signing: if written, must be signed by the patient or another person
at the patient’s direction (s 8(a)).
• Witnessing: if written, must be witnessed by 2 people, in the
presence of each other and the patient (s 8(b)(c)). If oral, must be
witnessed by 2 health professionals (including a doctor) present at
the same time (s 9(1)).
• Operation: operative from the time it is made.
• Treatments that can be refused: treatment generally, or of a
particular kind (s 7(1)).
• Treatment that cannot be refused: palliative care (s 6(2)), defined as
the provision of reasonable medical and nursing procedures for the
relief of pain, suffering and discomfort, and the reasonable provision
of food and water (Dictionary).
• Revocation: directions can be revoked by clearly expressing to
a health professional or another person a decision to revoke the
direction (s 10(1)), or by making an enduring power of attorney,
which automatically revokes the direction (s 19(2)).
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= TABLE 10.3.4 Advance directives: legislation and

requirements
• When the direction should not be followed: under s 12:
A health professional must not follow a direction unless the health
professional believes on reasonable grounds that—
(a) the direction complies with this Act; and
(b) the person has not revoked the direction or changed the person’s
decision since making the direction.
• Notification: once a direction is made or revoked the health
professional must inform the person in charge of the healthcare
facility (s 13).
NT Natural Death Act 1988
• Name: direction.
• Form: prescribed in schedule to Natural Death Regulations (s 4(1)).
• Signing: required (reg sched).
• Witnessing: must be witnessed by 2 people who are at least 18, not
including the treating doctor (s 4(2)).
• Operation: operative when the patient is suffering from a ‘terminal
illness’ (s 4(3)).
• Treatments that can be refused: ‘extraordinary measures’ (s 4(1)),
meaning:
medical or surgical measures that prolong life, or are intended to prolong
life, by supplanting or maintaining the operation of bodily functions that
are temporarily or permanently incapable of independent operation (s 3).
• Revocation: no prescribed form of revocation.
• Where directive need not be followed: under s 5(3):
A medical practitioner incurs no liability for a decision made by him or her
in good faith and without negligence as to whether a patient–
(a) is, or is not, suffering from a terminal illness;
(b) revoked, or intended to revoke, a direction under this Act; or
(c) was, or was not, at the time of making a direction under this Act,
capable of understanding the nature and consequences of the
direction.
Qld Powers of Attorney Act 1998
• Name: advance health directive.
• Form: must be in writing (s 44(2)).
• Signing: must be signed by patient or ‘eligible signer’ who signs in
the patient’s presence and at their direction (s 44(3)(a)(ii)).
• Witnessing: must be witnessed by an ‘eligible witness’, who must
be at least 21 among other requirements. An eligible witness can be
a justice of the peace, commissioner for declarations, notary public
or lawyer (s 31(1)). Must include a certificate from a doctor stating
that the patient appeared to have capacity at the time of making the
directive.
• Operation: operative when patient has impaired capacity for the
matter covered by the direction (s 36(1)(a)).
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= TABLE 10.3.4 Advance directives: legislation and

requirements
• Treatments that can be consented to or refused: can be used to
refuse or consent (in the circumstances specified) to particular
future healthcare, including the withdrawal of life-sustaining
treatment and the use of force (s 35(2)). A direction to withhold
life-sustaining treatment will not operate unless: the patient is
terminally ill and not expected to live more than a year, or is in a
persistent vegetative state, or is permanently unconscious, or has
a severe illness with no reasonable prospect of survival without the
life-sustaining measures; and (if the direction concerns artificial
hydration or nutrition) the measure would be inconsistent with good
medical practice; and the patient has no reasonable prospect of
regaining capacity for health matters (s 36(2)).
• Revocation: must be in writing, and person must have capacity
(s 48(1)).
• Where directive need not be followed: under s 103(2) the directive is
not binding:
if a health provider has reasonable grounds to believe that a direction
in an advance health directive is uncertain or inconsistent with good
medical practice or that circumstances, including advances in medical
science, have changed to the extent that the terms of the direction are
inappropriate (s103(1)).
SA Consent to Medical Treatment & Palliative Care Act 1995
• Name: anticipatory directive.
• Form: prescribed in Consent to Medical Treatment and Palliative
Care Regulations 2004 (s 7(2)(a)).
• Signing: required (reg sched 1).
• Witnessing: must be witnessed by authorised witness (s 7(2)(b)); that
is, a justice of the peace. a commissioner for taking affidavits in the
Supreme Court, a member of the clergy or a registered pharmacist
(s 4).
• Operation: operative when the patient is in the terminal phase of a
terminal illness, or in a persistent vegetative state and incapable of
making decisions about medical treatment (s 7(1)).
• Treatments that can consented to or refused: directive can consent
to or refuse any treatment (s 7(1)).
• Revocation: no prescribed form of revocation.
• Registration: voluntary registration with Medic Alert at 216 Greenhill
Road, Eastwood, SA 5063.
Vic Medical Treatment Act 1988
• Name: refusal of treatment certificate.
• Form: prescribed in Schedule 1 of the Act (s 5(2)).
• Signing: not essential.
• Witnessing: 2 people, one being a medical practitioner, together
certify that the patient wishes to refuse treatment for a current
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= TABLE 10.3.4 Advance directives: legislation and

requirements
condition; the patient’s decision is made voluntarily, they have been
informed about their condition and they appeared to understand the
information; and they are of sound mind and at least 18 years old
(s 5(1)).
• Operation: operative from the time it is made.
• Treatment that can be refused: treatment generally, or of a particular
kind, relating to a current condition (presumably current when the
certificate was created) (s 5(1)(a)).
• Treatment that cannot be refused: palliative care (s 4(2)), defined as
the provision of reasonable medical and nursing procedures for the
relief of pain, suffering and discomfort, and the reasonable provision
of food and water (s 3).
• Cessation: under s 7(3):
A refusal of treatment certificate ceases to apply if the medical condition
of the patient has changed to such an extent that the condition in relation
to which the certificate was given is no longer current.
• Revocation: a patient can revoke the certificate by clearly
expressing or indicating their wish to a registered medical
practitioner or another person (s 7(1)).
• Registration: a copy of the certificate must be sent to VCAT within
7 days; placed in the patient’s file; and given to the chief executive
officer of the institution they are in (s 5E).

[10.3.5] Can advance directives be used to consent to treatment

as well as refuse it? Common law directives can be used to consent
to treatments. In Queensland and South Australia treatments can
also be consented to, but in other jurisdictions the forms can only
be used to refuse treatment.

[10.3.6] Are there penalties for not complying with an advance

directive? Yes. At common law, if a health professional ignores a
valid advance directive they may be sued for the tort of battery, or be
liable for an assault under criminal law. In Victoria, a special offence
of medical trespass has been recognised, which would allow doctors
to be punished for ignoring a valid refusal of treatment certificate.
However, while these claims may be brought, the jurisdictions
that have advance directives in legislation also provide civil and
criminal immunity to health professionals who act reasonably and
in good faith.

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10.4 Criminal law and the dying process

[10.4.1] Will I be assisting a suicide if I help a patient refuse
treatment? While suicide and attempted suicide are not crimes,
assisting a suicide is a crime in all Australian jurisdictions. This
raises the issue of criminal liability for health professionals who help
a patient refuse life-sustaining treatment. Outside cases of self-harm,
is it possible to distinguish between a patient refusing treatment and
a patient attempting suicide?
Common law courts from other jurisdictions have drawn such a
distinction, primarily by arguing that a person who refuses treatment
generally cannot be said to intend to die or desire death. Alternatively,
a patient’s decision to refuse treatment has been found not to have
caused the patient’s death; it is accepted that the patient dies from
the disease or injury that required treatment, not from the failure
to treat.
Numerous protections are also afforded under legislation, particu-
larly in relation to advance directives, to healthcare professionals
who respect patients’ decisions to refuse treatment, as long as they
act in good faith and without negligence. The relevant legislation is
given in table 10.4.1.

TABLE 10.4.1 Protection from liability: legislation and

protections
ACT Medical Treatment (Health Directions) Act 2006
Section 15 states:
(1) This section applies if a health professional makes a decision honestly
about whether a person—
(a) revoked, or intended to revoke, a health direction; or
(b) was, or was not, at the time of making a direction or granting a power
of attorney, capable of understanding the nature and effect of the
direction.
(2) Civil or criminal liability is not incurred only because of the making of the
decision.
Section 16 states:
(1) This section applies to a health professional, or a person acting under the
direction of a health professional, if—
(a) the health professional makes a decision that the health professional
believes, on reasonable grounds, complies with this Act; and
(b) the health professional, or other person, honestly and in reliance
on the decision, withholds or withdraws medical treatment from a
person.
(2) The withholding or withdrawing of treatment is not—
(a) a breach of professional etiquette or ethics; or
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= TABLE 10.4.1 Protection from liability: legislation and

protections
(b) a breach of a rule of professional conduct.
(3) Civil or criminal liability is not incurred only because of the withholding or
withdrawing of treatment.
NT Natural Death Act 1988
Under s 6, the non-application of medical treatment in compliance with
a direction under the Act does not constitute a cause of death.
Qld Powers of Attorney Act 1998
Under s 101, a person:
acting in accordance with a direction in an advance health directive, or
a decision of an attorney for a health matter, is not liable for an act or
omission to any greater extent than if the act or omission happened with the
principal’s consent and the principal had capacity to consent.
Section 80 of the Guardianship & Administration Act 2000 repeats this
protection.
SA Consent to Medical Treatment & Palliative Care Act 1995
Section 16 states that a health professional:
incurs no civil or criminal liability for an act or omission done or made—
(a) with the consent of the patient or the patient’s representative or without
consent but in accordance with an authority conferred by this Act or any
other Act; and
(b) in good faith and without negligence; and
(c) in accordance with proper professional standards of medical practice;
and
(d) in order to preserve or improve the quality of life.
Under s 17(2), medical practitioners caring for patients in the terminal
phase of a terminal illness have:
no duty to use, or to continue to use, life-sustaining measures in treating the
patient if the effect of doing so would be merely to prolong life in a moribund
state without any real prospect of recovery, or in a persistent vegetative
state.
Under s 17(3)(b):
the non-application or discontinuance of life-sustaining measures in
accordance with subsection (2) does not constitute an intervening cause of
death.
Vic Medical Treatment Act 1988
Under s 9(1), a health professional:
… who, in good faith and in reliance on a refusal of treatment certificate,
refuses to perform or continue medical treatment which he or she believes
on reasonable grounds has been refused in accordance with this Act is not—
(a) guilty of misconduct or infamous misconduct in a professional respect; or
(b) guilty of an offence; or
(c) liable in any civil proceedings, because of the failure to perform or
continue that treatment.
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= TABLE 10.4.1 Protection from liability: legislation and

protections
Under s 9(2):
… a person who acts in good faith in reliance on a refusal of treatment
certificate but who is not aware that the certificate has been cancelled, is to
be treated as having acted in good faith in reliance on a refusal of treatment
certificate.

[10.4.2] Is it homicide to withdraw life-sustaining treatment from

a patient? Under common law there is no criminal culpability for
an omission, or failure to act. The only situation in which a person
becomes criminally responsible in homicide for failing to act is
one in which that person was under a duty to act to prevent death.
For example, a person who is a stranger to a child might well
watch the child drown and not be criminally responsible, while
the child’s parent may be convicted of murder for not attempting
a rescue.
This concept of omissions is central to end-of-life decision-
making. If life-sustaining treatments are not in a patient’s best
interests, there is no duty on the part of health professionals to
provide them. Consequently, if the patient dies because life-sustaining
treatments have been withheld or withdrawn, there is no criminal
liability because there was no duty to provide them. The failure to
treat is not seen as a cause of death; death is the result of the person’s
injury or disease.
The notion of omission includes actions necessarily undertaken in
the process of withdrawing treatment, such as turning off mechanical
ventilation, removing tubes during extubation, and sedating patients
before extubation.
These principles are also recognised in legislation in some
jurisdictions: see table 10.4.2.

TABLE 10.4.2 Protection from liability in connection with pain

relief: legislation and protections
ACT Medical Treatment (Health Directions) Act 2006
Section 17 states:
(1) This section applies in relation to a person who—
(a) has given a health direction that medical treatment be withheld or
withdrawn from the person; and
(b) is under the care of a health professional.
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= TABLE 10.4.2 Protection from liability in connection with pain

relief: legislation and protections
(2) The person has a right to receive relief from pain and suffering to the
maximum extent that is reasonable in the circumstances.
(3) In providing relief from pain and suffering to the person, the health
professional must give adequate consideration to the person’s account of
the person’s level of pain and suffering.
SA Consent to Medical Treatment & Palliative Care Act 1995
Section 17(1) states that:
A medical practitioner responsible for the treatment or care of a patient in the
terminal phase of a terminal illness, or a person participating in the treatment
or care of the patient under the medical practitioner’s supervision, incurs no
civil or criminal liability by administering medical treatment with the intention
of relieving pain or distress—
(a) with the consent of the patient or the patient’s representative; and
(b) in good faith and without negligence; and
(c) in accordance with proper professional standards of palliative care, even
though an incidental effect of the treatment is to hasten the death of the
patient.
Under s 17(3):
For the purposes of the law of the State—
(a) the administration of medical treatment for the relief of pain or distress in
accordance with subsection (1) does not constitute an intervening cause
of death.
Qld Criminal Code 1999
Section 282A states:
(1) A person is not criminally responsible for providing palliative care to
another person if—
(a) the person provides the palliative care in good faith and with
reasonable care and skill; and
(b) the provision of the palliative care is reasonable, having regard to the
other person’s state at the time and all the circumstances of the case;
and
(c) the person is a doctor or, if the person is not a doctor, the palliative
care is ordered by a doctor who confirms the order in writing.
(2) Subsection (1) applies even if an incidental effect of providing the
palliative care is to hasten the other person’s death.
(3) However, nothing in this section authorises, justifies or excuses—
(a) an act done or omission made with intent to kill another person; or
(b) aiding another person to kill himself or herself.
(4) To remove any doubt, it is declared that the provision of the palliative
care is reasonable only if it is reasonable in the context of good medical
practice.
(5) In this section—
good medical practice means good medical practice for the medical
profession in Australia having regard to—
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= TABLE 10.4.2 Protection from liability in connection with pain

relief: legislation and protections
(a) the recognised medical standards, practices and procedures of the
medical profession in Australia; and
(b) the recognised ethical standards of the medical profession in Australia.
palliative care means care, whether by doing an act or making an
omission, directed at maintaining or improving the comfort of a person
who is, or would otherwise be, subject to pain and suffering.

[10.4.3] Is it permissible to accelerate the dying process? As stated

in [10.4.2], the protection given to health professionals who withhold
or withdraw treatment in a patient’s best interests depends on the
classification of the withholding or withdrawal as an omission. Positive
acts, knowingly committed, that lead to death are considered to cause
death, and hence result in criminal responsibility in homicide.
An exception has been recognised for the use of pain-killing
and sedative medications. This is often referred to as the principle
of double effect, based on the Catholic moral doctrine of the same
name. The common law has recognised in a number of cases that
health professionals may incidentally accelerate death when treating
patients for pain and suffering if the acceleration of death is shown
to be an unintended outcome of the palliative care.
While the principle has been accepted by superior courts in
many common law countries, it remains difficult to reconcile with
the criminal law concepts of intention. Nevertheless it remains an
accepted principle, and has even been enshrined in legislation in South
Australia and Queensland, and partially recognised in the ACT. The
relevant legislation is discussed in table 10.4.2.
The essence of the exception is the use of medications to reduce
pain or distress, either directly or indirectly. The use of drugs that
do not reduce pain, or aid other treatments in reducing pain, will not
gain the protection of the exception.

Case example
R v Cox (1992) 12 BMLR 38 considered the actions of Dr Nigel
Cox, who injected a patient with a lethal dose of potassium chloride
designed to cause the patient’s death. Potassium chloride has no
analgesic effects. Dr Cox had known the patient for 13 years, and
he had promised her that she would not suffer. The pain-killing
medication that he prescribed was ineffective, and she begged him
to kill her. He gave her the injection, and she died within minutes.

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Dr Cox was tried and convicted of attempted murder. The

charge of murder was not available, as the body had been
cremated before an autopsy could be performed and hence there
was no evidence that the injection had killed the patient.
Ognall J in his summing-up to the jury repeated the findings of
Devlin J and Farquharson J that:
There can be no doubt that the use of drugs to reduce pain and
suffering will often be fully justified notwithstanding that it will, in fact,
hasten the moment of death. What can never be lawful is the use of
drugs with the primary purpose of hastening the moment of death.

References and further reading

Jordens C, Little M, McPhee J & Kerridge I, ‘From advance
directives to advance care planning: current legal status, ethical
rationales and a new research agenda’ (2005) 35 Internal
Medicine Journal 563
Kerridge I, Mitchell K & McPhee J, ‘Defining medical futility in
ethics, law and clinical practice: an exercise in futility?’ (1997) 4
Journal of Law & Medicine 235
NSW Health, Guidelines on end-of-life decision-making (2005)
(www.health.nsw.gov.au/pubs/index.html)
NSW Health, Using advance care directives (2004) (www.health.nsw.
gov.au/pubs/index.html)
Stewart C, ‘Advance directives: disputes and dilemmas’ in
I Freckelton & K Petersen (eds), Disputes and dilemmas in health
law (2006) Federation Press, Sydney, pp.38–53
Stewart C & Lynch A ‘Undue influence, consent and medical
treatment’ (2003) 96 Journal of the Royal Society of Medicine
598–601

Cases
B v NHS Trust [2002] EWHC 429 (Fam)
HE v A Hospital NHS Trust [2003] EWHC 1017 (Fam)
Malette v Schulman (1990) 67 DLR (4th) 321
McBain v State of Victoria (2000) 99 FCR 116
NHS Trust v T [2004] EWHC 1279 (Fam)
Northridge v Central Sydney Area Health Service [2000] NSWLR 1241
Pearce v South Australian Health Commission (1996) 66 SASR 486
R (On the application of Burke) v General Medical Council [2006]
QB 273

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[10.4.3] The Australian Medico–Legal Handbook

R v Cox (1992) 12 BMLR 38

Re A [1992] 3 Med LR 303
Re Kinney (unreported, VSC, Fullagar J, 23 December 1988)
Re T (An Adult) (Consent to Medical Treatment) [1992] 2 Fam 458

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 CHAPTER 11

Incompetent patients and end-of-

life decisions
11.1 Substitute decision-making and the dying
process
[11.1.1] Who can act as a substitute decision-maker for an
incompetent patient who needs life-sustaining treatments? Parents
are the primary decision-makers for children, but their choices are
limited to the child’s best interests. The substitute decision-makers
available for children are discussed in chapter 9, along with a number
of situations concerning the refusal of treatment.
The substitute decision-makers available for adults are discussed
in chapter 8. They include the courts, guardianship authorities,
appointed guardians, enduring attorneys and persons responsible.
Each must consider several factors when making decisions for an
incompetent adult.
The common law has no strict definition of life-sustaining
treatments, but the term is generally taken to mean those treatments
that preserve life, such as cardiopulmonary resuscitation, artificial
ventilation, and artificial nutrition and hydration. In Queensland
s 5A of the Guardianship and Administration Act 2000 defines ‘life-
sustaining measures’ as follows:

(1) A life-sustaining measure is healthcare intended to sustain or

prolong life and that supplants or maintains the operation of vital
bodily functions that are temporarily or permanently incapable
of independent operation.
(2) Without limiting subsection (1), each of the following is a life-
sustaining measure—
(a) cardiopulmonary resuscitation;
(b) assisted ventilation;

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(c) artificial nutrition and hydration.

(3) A blood transfusion is not a life-sustaining measure.

11.2 Courts and end-of-life decisions

[11.2.1] Can courts consent to the withdrawal of life-sustaining
treatments? The Supreme Court in each state and territory has the
power to make orders concerning the treatment of both children
and incompetent adults through the parens patriae jurisdiction: see
[8.2.1]. The Supreme Courts can use this power to consent to the
withholding or withdrawal of treatment, or they can make declarations
that such action is in the patient’s best interests and therefore lawful.
Alternatively, the court can appoint a guardian and give the guardian
powers to make such decisions.

Case example
In Messiha (by his tutor) v South East Health [2004] NSWSC
1061, a patient’s family sought a court order for the continuation
of life-sustaining treatments. The patient had had a cardiac arrest
and suffered severe brain damage as a result. He had a history
of heart disease and severe lung disease. There was unanimous
medical opinion that the best interests of the patient would be
served by the managed withdrawal of treatment. However, the
patient’s family disputed this, believing that treatment was not
futile if it continued to support the patient’s life.
Howie J decided that the managed withdrawal of treatment
was in the patient’s best interests. He was swayed by the
unanimous medical opinion as to the patient’s prognosis, and
believed that the treatment was burdensome and futile.

11.3 Guardianship and end-of-life decisions

[11.3.1] Can guardianship authorities consent to the withdrawal
of life-sustaining treatments? Guardianship authorities are discussed
in [8.2.1]. These authorities do not enjoy the wide parens patriae
powers of the superior courts, and some doubt may be expressed
as to whether they have the power to authorise the withholding or
withdrawing of treatment from incompetent adults.
In Queensland an express power has been granted to the Guardian-
ship and Administration Tribunal to refuse life-sustaining treatments.
However, the tribunal’s consent to the withholding or withdrawal of a
life-sustaining measure for an adult cannot operate unless the patient’s
health provider considers the commencement or continuation of the
treatment to be inconsistent with good medical practice.

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In other jurisdictions reference is made to powers of consent

rather than refusal. Arguably, if an authority has the power to say
‘yes’ to treatment, and must consider specified factors in exercising
this power, it must have been envisaged that the authority may also
refuse to give consent. Alternatively, if withholding or withdrawing
treatment is considered to be part of a wider treatment plan of comfort
care, it would make sense to say that the guardianship authorities can
consent to that form of treatment (comfort or palliative care).
In New South Wales there is debate about whether the
Guardianship Tribunal (and other substitute decision-makers under
the Guardianship Act 1987) have the power to consent to the with-
drawal of treatment.
Case examples
WK v Public Guardian (No 2) [2006] NSWADT 121 concerned
Mr X, a 73-year-old man with end-stage kidney disease,
advanced heart disease, dementia and bowel cancer. Mr X was
receiving haemodialysis. A decision was made by his treating
physician, his sister-in-law and other relatives and friends to stop
the dialysis. However, a friend of Mr X’s, WK, objected to the
decision to withdraw treatment, and it was referred to the New
South Wales Guardianship Tribunal, which appointed the Public
Guardian as Mr X’s guardian. The Public Guardian, among other
things, consented to the withdrawal of treatment, a not-for-
resuscitation order and palliative care.
WK appealed the Public Guardian’s decision to the New
South Wales Administrative Decisions Tribunal. The deputy
president of that tribunal issued a stay on the decision to
withdraw treatment, and ordered that further evidence be
presented (WK v Public Guardian [2006] NSWADT 93). On the
return of the application the tribunal decided that the decision
to withdraw dialysis and to refuse ‘aggressive’ treatment was
beyond the power of the Public Guardian.
This was primarily because Part V of the Guardianship Act,
which gives the Guardianship Tribunal, appointed guardians,
enduring guardians and persons responsible powers over
treatment, limits those powers to giving consent to treatments
that promote and maintain health and wellbeing. On the deputy
president’s reading of the Act, a decision to withdraw treatment
did not promote health and wellbeing. If this is the case,
substitute decision-makers who draw power from the New
South Wales Guardianship Act have no power to consent to the
withdrawal of life-sustaining treatments.
It should be said that the authority of this decision is
questionable.

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In Re AG [2007] NSW GT 1 (5 February 2007), the

Guardianship Tribunal reviewed the findings in the WK matter,
and gave a decision that varies substantially from the findings
of the Administrative Decisions Tribunal. The patient was a 56-
year-old woman with mild intellectual disability. She lived alone in
her own home, receiving support services on a daily basis from
a specialist care provider. She had been diagnosed with a renal
tumour with lymphadenopathy in the abdomen and pelvis. There
was also the possibility that she had secondary brain tumours,
and her prognosis was consequently very poor. She had a history
of refusing medical treatment, and fear of needles. She refused
to acknowledge the existence of the kidney tumour, although she
accepted that she had cancer.
The Public Guardian, which had been managing AG’s care,
was now faced with making a palliative care plan that included
decisions to forego cardiopulmonary resuscitation and dialysis.
The Public Guardian approached the Guardianship Tribunal for
directions, given that the WK (No 2) decision seemed to indicate
that it was not possible for the Public Guardian to consent to
such a plan.
The tribunal decided that, generally, consent could be given
or refused for medical treatment, which included palliative care.
Palliative care, in turn, could include treatment limitations, such
as the non-provision of treatment, as long as the care promoted
and maintained health and wellbeing, as required by the Act. The
tribunal stated that the weight of authority supported the notion
that treatment limitation can promote and maintain a person’s
health and wellbeing, if it prevents futile treatment and allows the
person to die with comfort and dignity.
The tribunal also found that guardians with health care
functions could be given the power to be involved in advance
care planning, while recognising that advance care planning could
be engaged in without appointing a guardian with a health care
function.
Bringing these findings to AG’s situation, the tribunal felt
that it was necessary for a specific order to be made to give the
Public Guardian the power to consent to the proposed palliative
care plan, and that this could only be done after further medical
investigations were completed.
Following this case, it would appear that decisions to withhold
or withdraw treatment may be made by substitute decision-
makers under the Guardianship Act 1987 (NSW).
In Re RWG [2000] QGAAT 2, the wife of a 73-year-old man
with an acquired brain injury made an application for a no-
cardiopulmonary-resuscitation order and for the power to refuse
antibiotics. The Queensland Guardianship and Administrative
Tribunal agreed to the no-cardiopulmonary-resuscitation order,

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 Incompetent patients and end-of-life decisions [11.3.2]

but would not consent to the refusal of antibiotics given that

the patient was not suffering from an infection at the time of the
hearing, and it would therefore be premature to examine the
issue.
In Re MC [2003] QGAAT 13, permission was sought to
withdraw artificial feeding from an 80-year-old woman in a
persistent vegetative state. The Queensland Guardianship and
Administrative Tribunal found that the treatment was of no benefit
to her and should be ceased.
Re HG [2006] QGAAT 26 concerned a 58-year-old man
with Wernicke’s encephalopathy and Korsakoff’s psychosis who
had a brain stem stroke that left him in a ‘locked-in’ state. The
Queensland Guardianship and Administrative Tribunal was asked
to determine whether artificial feeding and hydration should
be continued. The tribunal found that on the basis of medical
evidence it would be inconsistent with good medical practice to
continue artificial feeding and hydration, and it ordered that such
treatments cease. A finding about good medical practice did not
require the practice to have the unanimous support of all medical
experts.

[11.3.2] Can appointed guardians consent to the withdrawal

of life-sustaining treatments? In all jurisdictions except New
South Wales, it would seem that guardians appointed by courts and
guardianship authorities have the power to consent to the withdrawal
of life-sustaining treatments. Guardianship is discussed at [8.2.1]–
[8.2.2].
A guardian’s power to refuse treatment is expressly recognised
in Queensland, Tasmania and Victoria. In Queensland, guardians can
only refuse treatment if the health professional providing the treatment
considers its commencement or continuation to be inconsistent with
good medical practice (Guardianship and Administration Act 2000
s 66A). In Tasmania, the guardian may consent to any healthcare
that is in the best interests of the represented person, and to refuse
or withdraw consent to any such treatment (Guardianship and
Administration Act 1995 s 25).
In Victoria a guardian (as a ‘person responsible’) may refuse
consent to treatment when it is not in the patient’s best interests
(Guardianship and Administration Act 1986 s 42H). Guardians may
also employ a refusal of treatment certificate. They may only do this
(under s 5B) when:

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(a) the medical treatment would cause unreasonable distress to the

patient; or
(b) there are reasonable grounds for believing that the patient, if
competent, and after giving serious consideration to his or her
health and well-being, would consider that the medical treatment
is unwarranted.

Refusal of treatment certificates cannot be used to refuse palliative

care, which is defined to include the reasonable provision of food
and water.
In other jurisdictions the power to refuse treatment may be
inferred from the grant of guardianship power. For example, in the
Northern Territory and Western Australia a guardian is given all the
powers and duties the guardian would have if they were a parent and
the represented person was their infant child (Adult Guardianship
Act s 17). In South Australia a guardian is given all the powers of a
guardian at law and in equity (Guardianship and Administration Act
1993 s 31). These grants of power are quite wide, and could arguably
include end-of-life decision-making.
In the ACT the situation is less clear. A guardian can consent to
medical procedures according to decision-making principles that in-
clude the carrying out of the patient’s wishes and the promotion of
their interests. Arguably, this could include a decision to refuse life-
sustaining treatments that do not promote the patient’s interests.
Finally, in New South Wales guardians appointed by the Guard-
ianship Tribunal can only consent to treatments that promote and
maintain health and wellbeing. There is current debate about whether
this includes the power to withhold or withdraw life-sustaining treat-
ments: see [11.3.1]. Arguably, guardians appointed by the Supreme
Court exercising the parens patriae jurisdiction would not be so
limited, because the source of the guardian’s power would be the
court’s parens patriae jurisdiction and not the Guardianship Act 1987.

Case examples
In Re BWV [2003] VSC 173, the Supreme Court of Victoria
ordered a guardian to be appointed to refuse artificial feeding for a
68-year-old woman with advanced Pick’s disease. The Supreme
Court found that artificial feeding was medical treatment under
the Victorian legislation, not the reasonable provision of food
and water, and could therefore be refused under the Medical
Treatment Act 1988 (Vic).

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 Incompetent patients and end-of-life decisions [11.4.1]

In RCS [2004] VCAT 1880, the wife and brother of a patient

with severe brain damage were appointed as limited guardians
for the purpose of refusing medical treatment, in this case the
administration of antibiotics.
Korp [2005] VCAT 779 concerned a patient who had suffered
a severe anoxic brain injury after an attempt was made on her life,
and had fallen into a persistent vegetative state. An application
was made to appoint the Public Guardian to make decisions
regarding her medical treatment, including, among other things, a
decision about whether to issue a refusal of treatment certificate
refusing artificial nutrition and hydration. It was argued by her
husband (who at the time had been charged with her attempted
murder) that the patient was a devout Catholic who would not
have refused artificial nutrition and hydration.
Morris J decided that the appointment of the Public Guardian
was in the patient’s best interests. The fact that she was a
Catholic did not necessarily mean that she would have wanted
artificial nutrition and hydration to be continued. It was said that
the hypothetical question posed by s 5B(2)(b) of the Medical
Treatment Act is not one ‘that is automatically answered in a
particular way because a person holds a particular religious faith’
[36].

11.4 Enduring powers of attorney and end-of-

life decisions
[11.4.1] Can enduring attorneys consent to the withholding and
withdrawal of treatment? The different kinds of enduring powers
of attorney over health, and how healthcare attorneys must make
decisions, are discussed in [8.3.1]–[8.3.5]. It appears that in all
jurisdictions with enduring attorneys, except New South Wales, an
enduring attorney may consent to the withholding or withdrawing
of life-sustaining treatments.
The New South Wales position has been complicated by the
decisions discussed at [11.3.1]. If enduring guardians can only con-
sent to treatment that promotes and maintains health and wellbeing,
it is arguable that they do have the power to refuse treatment. It is
also possible for a donor to give lawful instructions to their attorney.
If such instructions gave the attorney power to refuse treatment,
arguably they would have the power to withhold or withdraw consent
to life-sustaining treatments.
In Victoria, a medical agent appointed under the Medical Treatment
Act may also create a refusal of treatment certificate ([11.3.2]) on
the patient’s behalf, on condition that:

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(a) the medical treatment would cause unreasonable distress to the

patient; or
(b) there are reasonable grounds for believing that the patient, if
competent, and after giving serious consideration to his or her
health and well-being, would consider that the medical treatment
is unwarranted.

Under s 73 of the ACT Powers of Attorney Act 2006, enduring attor-

neys must have regard to the patient’s right to receive relief from pain,
suffering and discomfort to the maximum extent that is reasonable
in the circumstances. The patient also has a right to the reasonable
provision of food and water. In providing relief from pain, suffering
and discomfort to the patient, the health professional must give
adequate consideration to the patient’s account of their level of pain,
suffering and discomfort. In this jurisdiction, the appointment of an
enduring guardian revokes any previous advance medical directive
given by the patient (Medical Treatment (Health Directions) Act
2006 s 19).

11.5 Persons responsible and end-of-life

decisions
[11.5.1] Can persons responsible consent to withdrawing and
withholding treatment? Persons responsible are substitute decision-
makers recognised in New South Wales, Queensland, South Australia,
Tasmania, Victoria and Western Australia: see [8.4.1]. They include
guardians, enduring health attorneys, relatives, friends and carers,
who can all be called upon to give consent in the absence of other
consent mechanisms. The ACT and the Northern Territory do not
have person responsible legislation.
In New South Wales persons responsible do not appear to have
the power to consent to the withdrawal of life-sustaining treatments:
see [11.3.1].
In Queensland the statutory health attorney (a form of person
responsible) can consent to the withholding or withdrawal of life-
sustaining measures, but only where the patient’s health provider
reasonably considers that the commencement or continuation of
the measures would be inconsistent with good medical practice
(Guardianship and Administration Act 2000 s 66A).
In the South Australian legislation, no express mention is made
of a power to refuse consent. It could be argued that the power to

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 Incompetent patients and end-of-life decisions [11.5.1]

consent must include a power to refuse consent, but this is conjectural

in the absence of judicial consideration.
There are similar problems with the wording of the Tasmanian
Guardianship and Administration Act 1995, which expressly
authorises the person responsible to consider the best interests of the
patient (s 43). As persons responsible can only consent when treatment
is in the patient’s best interests, the Act seems to acknowledge that
there may be occasions when life-sustaining treatments are not in
the patient’s best interests, and should be withheld or withdrawn.
It therefore appears that persons responsible do have the power to
refuse treatment in Tasmania.
Exactly the same arguments apply in Victoria, where the person
responsible must consider the patient’s best interests before consenting
to treatment. Again it could be said that the Guardianship and
Administration Act 1986 seems to acknowledge that there may be
occasions when life-sustaining treatments are not in the patient’s best
interests, and should be withheld or withdrawn. Express mention is
made of a person responsible refusing consent to treatment in s 42L.
The section allows a medical practitioner to provide treatment over
the person responsible’s objections if the practitioner believes on
reasonable grounds that the proposed treatment is in the patient’s best
interests. The practitioner must send a written notice to the person
responsible informing them of the decision and the right to appeal
to the Victorian Civil and Administrative Tribunal.
In Western Australia, s 119 of the Guardianship and Adminis-
tration Act 1990 states that a number of alternative decision-makers
can consent to medical treatment. Consent has been considered by
the Western Australian Guardianship Board (now subsumed within
the State Administrative Tribunal) to include decisions to withhold
and withdraw life-sustaining treatments. If the Acts Amendment
(Consent to Medical Treatment) Bill 2006 is enacted, substitute
decision-makers will acquire express powers to refuse life-sustaining
treatment.
Case example
BTO [2004] WAGAB 2 concerned a comatose man who had
apparently suffered a severe stroke. Questions were raised as to
whether s 119 of the Guardianship and Administration Act 1990
(WA), which deals expressly with consent to treatment, could be
applied to the withdrawal of artificial nutrition and hydration when
such withdrawal would be in the patient’s best interests. The

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[11.6.1] The Australian Medico–Legal Handbook

Western Australian Guardianship Board found that the concept

of treatment adopted by the Act included not only consent to
medical or surgical procedures but decisions to withdraw life-
sustaining measures. A guardian was appointed with the power
to refuse artificial nutrition and hydration.

11.6 Health professionals and end-of-life

decisions
[11.6.1] Can health professionals consent to the withholding
and withdrawing of treatment? The common law has always
recognised the power of health professionals to make treatment
decisions for incompetent patients under the doctrine of necessity,
and most Australian jurisdictions have also recognised this power
in legislation: see [6.4.1].
The doctrine of necessity requires health professionals to do what
is necessary in the patient’s best interests. As part of that power it
has been accepted that a doctor could withhold or withdraw life-
sustaining treatments when they were no longer in the patient’s best
interests. Because the common law does not recognise a right of
family members to make decisions for incompetent adults, doctors
are considered to be primary judges of the patient’s best interests,
although there was an obvious need to consult with the patient’s
family about this. This is illustrated in Bland’s case.

Case example
Airedale NHS Trust v Bland [1993] 2 WLR 316 was concerned
with the question of whether it would be homicide for doctors
to withdraw artificial nutrition and hydration from a patient in a
persistent vegetative state. The House of Lords decided that
the withdrawal of such treatment would not constitute murder
if it was in the patient’s best interests (see [10.4.2]), and found
that doctors were not bound to provide treatment that has no
beneficial effect. The question of ‘benefit’ was answered by
looking at what a responsible body of medical opinion believed
would be in the patient’s best interests. As the prevailing medical
opinion was that artificial nutrition and hydration was not in the
patient’s best interest, there was no duty for it to be provided and
it could be withdrawn without criminal sanction. It was also said
that decisions concerning the withdrawal of treatment should be
brought before the courts as a matter of good practice, although
this was not mandatory.

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 Incompetent patients and end-of-life decisions [11.6.2]

Since Bland’s case, the English courts have on numerous occasions

upheld the right of health professionals to withhold or withdraw
treatment on an assessment of the patient’s best interests. In Australia,
judicial discussion of the role of the best interests test in end-of-
life decision-making has occurred less frequently, but the test was
employed by the Supreme Court of New South Wales in Northridge
v Central Sydney Area Health Service [2000] NSWLR 1241 and in
Messiha (by his tutor) v South East Health [2004] NSWSC 1061. The
Messiha case is particularly instructive, because the court accepted
the treatment team’s assessment that the patient’s best interests were
served by the withdrawal of life-sustaining treatments.
In the ACT and the Northern Territory (where there is no person
responsible legislation) it would appear that the common law prevails.
Health professionals (and not family members) must decide what
treatments to provide for patients on a best interests assessment,
and may conclude that treatment should be withheld or withdrawn
when it is not in the patient’s best interests. If that process proves
too difficult or there is a dispute, recourse can be had to the relevant
Supreme Court for an assessment of the patient’s best interests.
In the other jurisdictions the common law arguably survives as
well, but it is modified by the legislation dealing with substitute
decision-making and end-of-life decisions. For example, s 63A of the
Queensland Guardianship and Administration Act 2000 states that
life-sustaining measures (except artificial nutrition and hydration)
may be withheld or withdrawn from a patient by a health professional
if that person reasonably believes that:
• the patient lacks competence, and
• the commencement or continuation of the treatment would be
inconsistent with good medical practice, and
• consistent with good medical practice, the decision to withhold
or withdraw the measure must be taken immediately.
Treatment cannot be withheld or withdrawn if the health professional
knows that the patient objects.

[11.6.2] Is a health professional bound to provide treatments that

are futile? No. The common law recognises that futile treatment is
not in the patient’s best interests: see [10.2.4] and [10.3.5]. However,
significant care should be taken in assessing futility of treatment
(Kerridge et al., 1997). Too often a health professional’s personal
opinions about quality of life may be confused with an assessment

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of a patient’s best interests. While futility of treatment is a factor

in substitute decision-making, it is important to remember that the
primary test at common law is the best interests of the patient, and this
test (or a version of it) is the one that must be employed by substitute
decision-makers under the various legislative regimes.
One possible exception to the principle against the provision of
futile treatment is contained in s 63A of the Queensland Guardianship
and Administration Act 2000. As stated in [11.6.1], the section
empowers health professionals to withhold or withdraw treatments in
emergencies when the treatment is not in the patient’s best interests.
However, the power cannot be employed if the health professional
knows that the patient objects. This has the potential (at least in the
short term) to force health professionals to provide treatments they
believe are futile.

[11.6.3] What if there is disagreement between substitute decision-

makers about a proposed treatment? This is discussed in [8.6.2].

11.7 Criminal law and end-of-life decisions

[11.7.1] Is it homicide to withdraw life-sustaining treatment from
a patient? This is discussed in [10.4.2].

[11.7.2] Is it permissible to accelerate the dying process? This is

discussed in [10.4.3].
References and further reading
Jordens C, Little M, McPhee J & Kerridge I ‘From advance directives
to advance care planning: current legal status, ethical rationales
and a new research agenda’ (2005) 35 Internal Medicine Journal
563
Kerridge I, Mitchell K & McPhee J, ‘Defining medical futility in
ethics, law and clinical practice: an exercise in futility?’ (1997) 4
Journal of Law & Medicine 235
NSW Health, Guidelines on end-of-life decision-making (2005)
(www.health.nsw.gov.au/pubs/index.html)
NSW Health Using advance care directives (2004) (www.health.nsw.
gov.au/pubs/index.html)
Stewart C, ‘Advance directives: disputes and dilemmas’ in
I Freckelton & K Petersen (eds), Disputes and dilemmas in health
law (2006) Federation Press, Sydney, pp. 38–53

160
 Incompetent patients and end-of-life decisions [11.7.2]

Stewart C & Lynch A, ‘Undue influence, consent and medical

treatment’ (2003) 96 Journal of the Royal Society of Medicine
598–601

Cases
Airedale NHS Trust v Bland [1993] 2 WLR 316
BTO [2004] WAGAB 2
Korp [2005] VCAT 779
Messiha (by his tutor) v South East Health [2004] NSWSC 1061
Northridge v Central Sydney Area Health Service [2000] NSWLR
1241
RCS [2004] VCAT 1880
Re AG [2007] NSWGT 1
Re BWV [2003] VSC 173
Re HG [2006] QGAAT 26
Re MC [2003] QGAAT 13
Re RWG [2000] QGAAT 2
WK v Public Guardian (No 2) [2006] NSWADT 121

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 CHAPTER 12

Organ and tissue donation

12.1 Human tissue
[12.1.1] What is human tissue? Human tissue is defined in legislation
in each state and territory. The legislation was a response to the 1977
Australian Law Reform Commission’s Report on Human Tissue
Transplants, so there are similarities across the jurisdictions.
Human tissue is defined to include an organ or part of a human
body, and substances extracted from the human body. All jurisdictions
also distinguish between regenerative tissue, meaning tissue that
is replaced after injury or removal by the body’s natural processes
of growth or repair, and non-regenerative tissue, which is not so
replaced.
The legislation excludes fetal tissue, spermatozoa and ova from
the definition. These tissues are discussed in chapter 15.
The relevant legislation is in table 12.1.1.

TABLE 12.1.1 Legislation relating to human tissue

ACT Transplantation & Anatomy Act 1978 ss 4, 6
NSW Human Tissue Act 1983 ss 4, 6
NT Human Tissue Transplant Act 1979 ss 4, 6
Qld Transplantation & Anatomy Act 1979 ss 4, 8
SA Transplantation & Anatomy Act 1983 ss 5, 7
Tas Human Tissue Act 1985 ss 3, 5
Vic Human Tissue Act 1982 ss 3, 5
WA Human Tissue & Transplant Act 1982 ss 3, 6

[12.1.2] Who owns human tissue? The general rule is that no-one
owns human tissue; the law regards human tissue as a res nullius, a
‘thing belonging to no-one’. This rule applies to all human tissue,
and to corpses. There is a general right given to the executors of a
deceased estate to keep possession of the corpse for burial, but this

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is a very weak form of property right. The effect of this rule is that
the common law is challenged by situations of competing claims to
human tissue, because it cannot easily access the property language
that it might have ordinarily employed.
The legislation in all Australian jurisdictions prevents the creation
of contracts for the sale or supply of tissue, although it is possible to
obtain ministerial exemption from this provision. It is also permissible
to reimburse a person for expenses incurred during the process of
having their tissue removed.
There is an exception to the general rule for human tissue that has
been changed or preserved through a process of skill and labour. Such
tissue can be viewed as property, and protected by property claims.
Contracts for the sale or supply of tissue that has been processed or
treated for therapeutic, medical or scientific purposes are permitted
under Australian laws.

12.2 Donation by adults

[12.2.1] How is blood donation regulated? Competent adults
can consent to the removal of blood for transfusion into others or
for other therapeutic, scientific or medical purposes. Consent can
be given orally or in writing, except in New South Wales, where
written consent is required. All jurisdictions except Queensland
require donors to make statements or declarations regarding their
suitability to give blood.
Children over 16 are treated as adults for the purpose of consent
to blood donation in the ACT and New South Wales.

[12.2.2] How is the donation of other regenerative tissues

regulated? Adults can donate regenerative tissue for transplantation
or for other therapeutic, medical or scientific purposes. Consent must
be given in writing. In South Australia, consent cannot be given in the
presence of a person’s family. In Western Australia, consent cannot
be given in the presence of a person’s family or friends.
All jurisdictions except South Australia and Western Australia
also require a medical practitioner (who is not the medical prac-
titioner taking the regenerative tissue) to provide a certificate stating
that:
• the person’s consent was given in the presence of the medical
practitioner
• the medical practitioner explained to the person, before the

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consent was given, the nature and effect of the removal of the
tissue, and
• the medical practitioner was satisfied that, at the time the
consent was given:
– the person was not a child
– the person was of sound mind, and
– the consent was freely given.
Once the person has given written consent and a doctor has provided
the certificate, the donation of regenerative tissue may go ahead.
However, the consent will be ineffective if:
• the person revokes the consent, or
• the certificate contains a statement that is false or misleading.

[12.2.3] Are adults permitted to donate non-regenerative tissue?

Before the rise of transplantation technology, the common law
forbade the donation of non-regenerative tissue because it saw it
as a form of bodily interference that a person could not consent to:
see [6.1.11]. Now, adults can donate non-regenerative tissue under
certain circumstances.
The donation must be solely for the purpose of transplantation
into another person, and consent must be given in writing. Removal
of the tissue cannot occur less than 24 hours after consent has been
given. In South Australia, consent must not be given in the presence
of a person’s family. In Western Australia, consent must not be given
in the presence of a person’s family or friends.
As with regenerative tissue, all jurisdictions except South Aus-
tralia and Western Australia require a medical practitioner (who is
not the medical practitioner taking the non-regenerative tissue) to
provide a certificate stating that:
• the person’s consent was given in the presence of the medical
practitioner
• the medical practitioner explained to the person, before the
consent was given, the nature and effect of the removal of the
tissue, and
• the medical practitioner was satisfied that, at the time the
consent was given:
– the person was not a child
– the person was of sound mind, and
– the consent was freely given.
A consent is ineffective if:

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• the person revokes the consent, or

• the certificate contains a statement that is false or misleading.

NSW Health and the NHMRC have developed processes for

ensuring that decisions to donate non-regenerative tissues made
by living related donors and non-related (altruistic) donors are valid
!
and freely made. See:
• Kidney donation: living (including directed and non-directed
donation) (www.health.nsw.gov.au/policies/PD/2005/
PD2005_393.html)
• Organ and tissue donation by living donors: ethical guidelines
for health professionals (www.nhmrc.gov.au/consult/donorgan.
htm).

[12.2.4] Can regenerative and non-regenerative tissue be taken

from an incompetent adult? Decision-making for incompetent
patients is discussed in chapter 8. The basic principle is that medical
interventions can only be consented to by a substitute decision-maker
when it is in the person’s best interests. Because donation of tissue
confers no therapeutic benefit on the donor, it is harder to justify on
best interests grounds.
The Supreme Courts in each jurisdiction may employ the parens
patriae jurisdiction to consent to the harvesting of either regenerative
or non-regenerative tissue, if the donation serves the potential donor’s
best interests.
Other substitute decision-makers, such as persons responsible,
guardians and enduring guardians, are not empowered to consent to
‘special’ treatment. In Queensland and Victoria any removal of tissue
(whether regenerative or non-regenerative) is considered as ‘special
healthcare’ (Queensland) or a ‘special procedure’ (Victoria), requiring
the consent of the Queensland Guardianship and Administrative
Tribunal or the Victorian Civil and Administrative Tribunal: see [8.5.1].
In the ACT and Tasmania, only the removal of non-regenerative tissue
requires guardianship authority approval: see [8.5.1]. In New South
Wales, the Guardianship Tribunal, guardians, enduring guardians
and persons responsible are unable to consent to the donation of
either regenerative or non-regenerative tissue. Consent can only be
obtained from the New South Wales Supreme Court.

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Case example
In Northern Sydney and Central Coast Area Health Service v
CT (by his Tutor ET) [2005] NSWSC 551, consent was given by
the NSW Supreme Court to the donation of bone marrow by an
intellectually disabled adult, CT, to his brother, NT, who suffered
from non-Hodgkin’s lymphoma. Consent could not be given by
CT’s other relatives because their power as persons responsible
was limited to treatments that promoted and maintained
CT’s health and wellbeing. Donating bone marrow served no
therapeutic purpose for CT, and as such did not promote his
physical welfare.
The court used its parens patriae power to assess CT’s best
interests, and consented to the donation. Nicholas J stated:
The exercise of the jurisdiction requires the court to regard the welfare
and interests of CT as the paramount consideration. Relevant matters
to be taken into account in determining what is in his best interest in
all the circumstances include, in my opinion, his wishes as expressed
by him and his level of understanding. I am satisfied that he at least
understands that by participating in the procedure he will be helping
his brother to get better, and this is something he wishes to do. I
infer from the evidence from both himself and his mother that he
would be very distressed if he was refused the opportunity to help his
brother and his brother subsequently died. This is consistent with the
impression he gave me as having a genuine concern and affection for
NT.

12.3 Children and human tissue

[12.3.1] Can blood be taken from children? The Northern Territory
legislation is silent on this issue, but the other jurisdictions permit
children to donate blood. The general requirements are that:
• the parent or guardian consents (in writing in New South Wales)
• the child agrees
• a medical practitioner advises the parent or guardian that any
risk to the child’s health (including their psychological and
emotional health) caused by removal of the blood is minimal.
In New South Wales blood can also be taken from a child without
the child’s agreement if:
• a parent or guardian consents in writing
• the blood is to be used in the treatment of the child’s parent
(biological, step or adoptive), brother or sister
• a medical practitioner (other than the medical practitioner
responsible for treating the child’s parent, brother or sister)
certifies in writing that, in their opinion:

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 Organ and tissue donation [12.3.2]

– the child is unable to understand the nature and effect of

removal of the blood, and
– any risk to the child’s health (including their psychological
and emotional health) caused by the removal of the blood
is minimal
• a medical practitioner certifies in writing that the parent,
brother or sister is likely to die or suffer serious damage to
their health unless blood removed from the child is used in the
treatment.

[12.3.2] Can regenerative tissue apart from blood be taken from

children? In all jurisdictions except the Northern Territory (which is
silent on the issue), a child’s parents may consent to the ‘donation’
of the child’s regenerative tissue for the purpose of transplantation
into a relative of the child, under certain conditions. The relevant
legislation is discussed in table 12.3.2.
The Family Court also has the power to consent to the removal of
regenerative tissue in the child’s best interests: see [9.3.5]. It would
appear that this power is not limited by state legislation, because
federal laws override inconsistent state laws: see [3.1.1].

TABLE 12.3.2 Removal of regenerative tissue from children:

legislation and requirements
ACT Transplantation & Anatomy Act 1978
Under s 13:
• A parent may consent in writing.
• The recipient must be a relative of the child.
• A medical practitioner may certify in writing that the consent was
given in their presence; that they explained to the parent and the
child the nature and effect of the procedure; and that they are
satisfied that the child understood the information and agreed to the
consent.
NSW Human Tissue Act 1983
Under s 10:
• A parent may consent in writing.
• The recipient must be either a parent (biological, step or adoptive),
brother or sister of the child.
Under s 11, if the child is competent (see note to s 10), the medical
practitioner may certify in writing that:
• the consent was given in their presence
• they explained to the parent and the child the nature and effect of
the procedure
=
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= TABLE 12.3.2 Removal of regenerative tissue from children:

legislation and requirements
• they are satisfied that both parent and child were of sound mind,
that both understood the information given, that consent was freely
given, and that the child agreed to the consent.
Under s 11A, if the child is too young to understand the nature and
effects of the donation it may still occur, but only when:
• the recipient is the child’s sibling
• the medical practitioner certifies that the parent’s consent was given
in their presence; that they explained to the parent the nature and
effect of the procedure; that they are satisfied that the parent was
of sound mind, understood the information given, and gave consent
freely; that the child is too young to understand the information; that
the brother or sister is likely to die or suffer serious and irreversible
damage to their health unless the transplantation occurs; and that
any risk to the child’s health (including psychological and emotional
health) is minimal
• a second medical practitioner, who is a paediatric specialist not
involved in the care of the recipient, also provides a certificate.
Qld Transplantation & Anatomy Act 1979
Under s 12B:
• a parent may give consent in writing
• the recipient must be either a parent or sibling of the child
• the parent’s consent must be signed in the presence of the
designated officer, who is the medical superintendent or their
nominee (s 6).
Under s 12C, if the child is competent, the medical practitioner must
certify (in the presence of the designated officer) that:
• they have explained to the child the nature and effect of the procedure
• the child understood the information
• the child agreed to the procedure.
Under s 12D, if the child is too young to understand the nature and
effect of the procedure, 3 medical practitioners (including a specialist
paediatrician and a specialist anaesthetist) must certify (in the
presence of a designated officer) that:
• the child is too young to understand the information
• the brother, sister or parent is likely to die without the transplant
• the risk to the child is minimal.
Under s 12E, the designated officer must certify that the parent’s
consent was given in their presence, and that they are satisfied that:
• the person was a parent of the child and of sound mind
• consent was freely given
• the required medical advice was given to the parent
• the required medical practitioners’ certificates were given in the
officer’s presence
• the practitioners who gave certificates did so after making the
necessary inquiries and examinations.
=
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 Organ and tissue donation [12.3.2]

= TABLE 12.3.2 Removal of regenerative tissue from children:

legislation and requirements
SA Transplantation & Anatomy Act 1983
Under s 13:
• a parent may consent in writing
• both parent and child must understand the nature and effect of the
procedure in the light of medical advice
• the child must agree to the consent
• the consent must be approved unanimously by a committee of three
members: a legal practitioner of at least seven years’ standing, a
medical practitioner and a social worker or psychologist. At least
one must be a woman and one a man.
There is no requirement that the recipient be a relative.
Tas Human Tissue Act 1985
Under s 12:
• the child and a parent may jointly give consent in writing
• the recipient must be a relative of the child.
Under s 13, a medical practitioner must certify in writing that:
• the consent was given in their presence
• they explained the nature and effect of the procedure to both child
and parent
• they are satisfied that both child and parent understood the information
• the consent was freely given by both child and parent.
Vic Human Tissue Act 1982
Under s 15:
• a parent may give consent in writing
• the recipient must be the child’s brother, sister or parent.
A registered medical practitioner may certify in writing that:
• the consent was given in their presence; they explained to the parent
the nature and effect of the procedure; they are satisfied that the child
was capable of understanding the nature and effect of the
procedure; they explained those matters to the child; the child
understood the information; and the child agreed to the procedure, or
• if the child is too young to understand the nature and effects of the
procedure, and the recipient is a brother or sister, that the brother or
sister is likely to die without the transplant, and that the child is not
capable of understanding the nature and effect of the procedure.
WA Human Tissue & Transplant Act 1982
Under s 13:
• a parent may consent in writing
• the recipient must be a relative of the child
• medical advice must have been given to the parent and the child
about the nature and effect of the procedure
• the child must have the mental capacity to understand the nature
and effect of the procedure
• the child must agree to the removal of the regenerative tissue.

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[12.3.3] Can non-regenerative tissue be taken from children?

Non-generative tissue can be taken from children in the ACT. South
Australia, Victoria and Western Australia prohibit the taking of non-
regenerative tissue from children, while the other jurisdictions have
no provisions enabling a transplant of non-regenerative tissue.
While it has never been tested, the Family Court would appear to
retain a power to consent to the removal of non-regenerative tissue
in a child’s best interests: see [9.3.5]. As stated above, the Family
Court’s powers are not limited by state legislation because federal
laws override inconsistent state laws: see [3.1.1].
The relevant legislation is summarised in table 12.3.3.

TABLE 12.3.3 Removal of non-regenerative tissue from

children: legislation and requirements
ACT Transplantation & Anatomy Act 1978
Under s 14:
• a parent (or both parents if possible) may consent in writing
• there is a 24 hour cooling-off period
• the recipient must be a member of the child’s family.
A medical practitioner must certify in writing that:
• the consents were given in their presence
• they advised the parents and the child that the recipient was in
danger of dying without the transplant
• they explained to the parents and the child the nature and effect of
the procedure
• they are satisfied that the child understood the nature and effect of
the procedure, and agreed to it.
The matter is then referred to a Ministerial committee made up of a
Supreme Court judge, a medical practitioner and a social worker or
psychologist, which may authorise the transplant if each member is of
the opinion that it ‘is desirable in all the circumstances of the case’.
SA Transplantation & Anatomy Act 1983
Removal of non-regenerative tissue from children is prohibited (s 12).
Vic Human Tissue Act 1982
Removal of non-regenerative tissue from children is prohibited (s 14).
WA Human Tissue & Transplant Act 1982
Removal of non-regenerative tissue from children is prohibited (s 12).

12.4 Donation of tissue after death

[12.4.1] What is the definition of death? This is discussed in
[10.1.1].

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 Organ and tissue donation [12.4.3]

[12.4.2] Can a person consent to having their tissues taken after

death? Yes. After a death a hospital officer (usually referred to as the
designated officer) is empowered to make inquiries as to whether the
deceased has consented to the use of their tissue for transplantation
or for medical, scientific or therapeutic purposes. If such consent
has been given and not revoked, the tissue can be taken for the uses
consented to. In New South Wales consent can only be given by adults.
In Queensland the deceased’s wishes must have been evidenced and
signed by them.
If a person’s body is being kept outside a hospital, their consent
to the removal of tissue will also authorise its removal, again on the
proviso that they did not, before death, revoke the consent.
A person’s objection to having tissue taken after death works in
the same way. Tissue cannot be taken if it is known that the person
objected.

[12.4.3] Can relatives consent to the removal of tissue after

death? Yes. In New South Wales, Queensland, Tasmania and Western
Australia the senior available next-of-kin can consent to the removal
of tissue for transplantation or therapeutic, medical or scientific
purposes, as long as there is no evidence that the deceased objected
to the removal of such tissue. In Victoria, the senior available next-
of-kin can also consent, and there is no requirement that the deceased
did not object.
In the other jurisdictions, if the person died in a hospital the senior
available next-of-kin is asked by the designated officer whether they
object to the removal of tissue rather than whether they consent to
it. Outside the hospital context, the senior available next-of-kin may
consent to the removal of tissue.
The ‘senior available next-of-kin’ is defined in terms of a
hierarchical list. In relation to a child it means the first available
of:
• a parent, then
• an adult brother or sister, then
• someone who was the child’s guardian immediately before the
child’s death.
In relation to an adult it means the first available of:
• their domestic partner, then
• an adult son or daughter, then
• a parent, then

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• an adult brother or sister.

If there is more than one senior available next-of-kin of the same
class, the objection of one of them will veto the removal of tissue.

[12.4.4] What if there is conflict between the wishes of the deceased

and the wishes of their family? Except in Victoria (where it appears
that the senior available next-of-kin may be able to consent even if
the deceased objected), the general position is that the consent (or
the objection) of the deceased is decisive. Family members cannot
override the deceased person’s expressed wishes.
While the law is clear in this regard, in practice account is
frequently taken of the wishes of relatives before a decision is made
to proceed with the removal of organs or tissues. Where relatives
express strong and consistent objections, medical practitioners often
accede to their wishes on the grounds that the potential harm done
to those left behind outweighs the harm done in not carrying out
the deceased person’s wishes. This is a good example of how law,
ethics and medical culture may all contribute to clinical practice, and
how it is overly simplistic to expect one of these to provide a full
account of the richness and complexity of healthcare and medical
decision-making.

[12.4.5] Can tissue be removed when there is no evidence of the

deceased’s wishes, and no available relatives to give consent?
Yes, in some jurisdictions. The ACT, the Northern Territory, South
Australia and Victoria all permit the designated officer to authorise
tissue removal where there is no information about the deceased’s
wishes and no senior available next-of-kin to approach. The other
jurisdictions are silent on this issue.
The relevant legislation is given in table 12.4.5.

TABLE 12.4.5 Legislation relating to the removal of tissue

after death where consent cannot be sought
ACT Transplantation & Anatomy Act 1978 s 27(3)
NT Human Tissue Transplant Act 1979 s 18(3)
SA Transplantation & Anatomy Act 1983 s 21(3)
Vic Human Tissue Act 1982 s 26(1)

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 Organ and tissue donation [12.4.5]

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapter 23
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 17
Saul P, McPhee J & Kerridge I, ‘Organ donation and transplantation
in Australia’ in I Freckelton & K Petersen (eds), Disputes and
dilemmas in health law (2006) Federation Press, Sydney,
pp. 343–63

Cases
Northern Sydney and Central Coast Area Health Service v CT (by his
Tutor ET) [2005] NSWSC 551

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 CHAPTER 13

Mental health
13.1 Defining mental illness
[13.1.1] What is the definition of mental illness? Each jurisdiction
has a definition of mental illness, although there are obvious similarities
between jurisdictions. The various legislative definitions are given
in table 13.1.1.

TABLE 13.1.1 Legislative definitions of mental illness

ACT Mental Health (Treatment & Care) Act 1994
Mental illness is defined in the Dictionary to the Act to mean:
a condition that seriously impairs (either temporarily or permanently) the
mental functioning of a person and is characterised by the presence in the
person of any of the following symptoms:
(a) delusions;
(b) hallucinations;
(c) serious disorder of thought form;
(d) a severe disturbance of mood;
(e) sustained or repeated irrational behaviour indicating the presence of the
symptoms referred to in paragraph (a), (b), (c) or (d).
Mental dysfunction is defined in the Dictionary to mean:
a disturbance or defect, to a substantially disabling degree, of perceptual
interpretation, comprehension, reasoning, learning, judgment, memory,
motivation or emotion.
NSW Mental Health Act 1990
Mental illness is defined in sched 1 to mean:
a condition which seriously impairs, either temporarily or permanently, the
mental functioning of a person and is characterised by the presence in the
person of any one or more of the following symptoms:
(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any
one or more of the symptoms referred to in paragraphs (a)–(d).
Under s 10, a person is defined as a mentally disordered person:
if the person’s behaviour is so irrational for the time being as to justify a
=
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= TABLE 13.1.1 Legislative definitions of mental illness

conclusion on reasonable grounds that temporary care, treatment or control
of the person is necessary:
(a) for the person’s own protection from serious physical harm, or
(b) for the protection of others from serious physical harm.
Section 11(1) states that:
a person is not a mentally ill or a mentally disordered person merely
because of any one or more of the following:
(a) that the person expresses or refuses or fails to express or has expressed
or refused or failed to express a particular political opinion or belief,
(b) that the person expresses or refuses or fails to express or has expressed
or refused or failed to express a particular religious opinion or belief,
(c) that the person expresses or refuses or fails to express or has expressed
or refused or failed to express a particular philosophy,
(d) that the person expresses or refuses or fails to express or has expressed
or refused or failed to express a particular sexual preference or sexual
orientation,
(e) that the person engages in or refuses or fails to engage in, or has
engaged in or refused or failed to engage in, a particular political activity,
(f) that the person engages in or refuses or fails to engage in, or has
engaged in or refused or failed to engage in, a particular religious activity,
(g) that the person engages in or has engaged in sexual promiscuity,
(h) that the person engages in or has engaged in immoral conduct,
(i) that the person engages in or has engaged in illegal conduct,
(j) that that the person has developmental disability of mind,
(k) that the person takes or has taken alcohol or any other drug,
(l) that the person engages in or has engaged in anti-social behaviour.
NT Mental Health & Related Services Act 1998
Mental illness is defined in s 6(1) to mean:
a condition that seriously impairs, either temporarily or permanently, the
mental functioning of a person in one or more of the areas of thought, mood,
volition, perception, orientation or memory and is characterised—
(a) by the presence of at least one of the following symptoms:
(i) delusions;
(ii) hallucinations;
(iii) serious disorders of the stream of thought;
(iv) serious disorders of thought form;
(v) serious disturbances of mood; or
(b) by sustained or repeated irrational behaviour that may be taken to indicate
the presence of at least one of the symptoms referred to in paragraph (a).
Under s 6(2):
a determination that a person has a mental illness is only to be made in
accordance with internationally accepted clinical standards and concordant
with the current edition of the World Health Organization, International
Classification of Mental and Behavioural Disorders, Clinical Descriptions and
Diagnostic Guidelines or the American Psychiatric Association Diagnostic
and Statistical Manual of Mental Disorders.
=
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= TABLE 13.1.1 Legislative definitions of mental illness

Under s 6(3):
A person is not to be considered to have a mental illness merely because he
or she—
(a) expresses or refuses or fails to express a particular political or religious
opinion or belief, a particular philosophy or a particular sexual preference
or sexual orientation;
(b) engages, or refuses or fails to engage, in a particular political, religious or
cultural activity;
(c) engages, or has engaged, in sexual promiscuity, immoral or illegal
conduct or anti-social behaviour;
(d) has a sexual disorder;
(e) is intellectually disabled;
(f) uses alcohol or other drugs;
(g) has a personality disorder or a habit or impulse disorder;
(h) has, or has not, a particular political, economic or social status;
(j) communicates, or refuses or fails to communicate, or behaves or refuses
or fails to behave, in a manner consistent with his or her cultural beliefs,
practices or mores;
(k) is, or is not, a member of a particular cultural, racial or religious group;
(m) is involved, or has been involved, in family or professional conflict;
(n) has been treated for mental illness or has been detained in a hospital that
provides treatment of mental illness;
(p) has been admitted as an involuntary patient on the grounds of mental
disturbance; or
(q) has acquired brain damage.
Mentally disturbed is defined in s 3 to mean:
behaviour of a person that is so irrational as to justify the person being
temporarily detained under this Act.
Qld Mental Health Act 2000
Under s 12:
(1) Mental illness is a condition characterised by a clinically significant
disturbance of thought, mood, perception or memory.
(2) However, a person must not be considered to have a mental illness
merely because of any 1 or more of the following—
(a) the person holds or refuses to hold a particular religious, cultural,
philosophical or political belief or opinion;
(b) the person is a member of a particular racial group;
(c) the person has a particular economic or social status;
(d) the person has a particular sexual preference or sexual orientation;
(e) the person engages in sexual promiscuity;
(f) the person engages in immoral or indecent conduct;
(g) the person takes drugs or alcohol;
(h) the person has an intellectual disability;
(i) the person engages in antisocial behaviour or illegal behaviour;
(j) the person is or has been involved in family conflict;
(k) the person has previously been treated for mental illness or been
subject to involuntary assessment or treatment.
=
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 Mental health [13.1.1]

= TABLE 13.1.1 Legislative definitions of mental illness

…
(4) On an assessment, a decision that a person has a mental illness must be
made in accordance with internationally accepted medical standards.
SA Mental Health Act 1993
Under s 3:
Mental illness means any illness or disorder of the mind.
Tas Mental Health Act 1996
Under s 4:
(1) A mental illness as a mental condition resulting in—
(a) serious distortion of perception or thought; or
(b) serious impairment or disturbance of the capacity for rational thought;
or
(c) serious mood disorder; or
(d) involuntary behaviour or serious impairment of the capacity to control
behaviour.
(2) A diagnosis of mental illness may not be based solely on—
(a) antisocial behaviour; or
(b) intellectual or behavioural nonconformity; or
(c) intellectual disability; or
(d) intoxication by reason of alcohol or a drug.
Vic Mental Health Act 1986
Section 8 states:
…
(1A) Subject to sub-section 2, a person is mentally ill if he or she has a
mental illness, being a medical condition that is characterised by a
significant disturbance of thought, mood, perception or memory.
(2) A person cannot be considered to be mentally ill by reason only of any
one or more of the following—
(a) that the person expresses or refuses or fails to express a particular
political opinion or belief;
(b) that the person expresses or refuses or fails to express a particular
religious opinion or belief;
(c) that the person expresses or refuses or fails to express a particular
philosophy;
(d) that the person expresses or refuses or fails to express a particular
sexual preference or sexual orientation;
(e) that the person engages in or refuses or fails to engage in a particular
political activity;
(f) that the person engages in or refuses or fails to engage in a particular
religious activity;
(g) that the person engages in sexual promiscuity;
(h) that the person engages in immoral conduct;
(i) that the person engages in illegal conduct;
(j) that the person is intellectually disabled;
(k) that the person takes drugs or alcohol;
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(l) that the person has an antisocial personality;
(m) that the person has a particular economic or social status or is a
member of a particular cultural or racial group.
(3) Sub-section (2)(k) does not prevent the serious temporary or permanent
physiological, biochemical or psychological effects of drug or alcohol
taking from being regarded as an indication that a person is mentally ill.
WA Mental Health Act 1996
Under s 4:
(1) … a person has a mental illness if the person suffers from a disturbance
of thought, mood, volition, perception, orientation or memory that impairs
judgment or behaviour to a significant extent.
(2) However a person does not have a mental illness by reason only of one
or more of the following, that is, that the person—
(a) holds, or refuses to hold, a particular religious, philosophical, or
political belief or opinion;
(b) is sexually promiscuous, or has a particular sexual preference;
(c) engages in immoral or indecent conduct;
(d) has an intellectual disability;
(e) takes drugs or alcohol;
(f) demonstrates anti-social behaviour.

13.2 Voluntary treatment

[13.2.1] How does a person consent to voluntary treatment for
mental illness, and what decisions can they make about their
treatment? People with mental illness have the same human rights
as everyone else. The fact that a person has a mental illness does not
mean that they lack the capacity to consent to treatment. All adults
are presumed to have capacity: see [7.1.2]. The starting point for
mental healthcare is the same as that for other healthcare: consent
must be sought for all treatments. Treatment cannot be provided to
a mentally ill person unless:
• consent is obtained, or
• the rules regarding involuntary treatment are satisfied.
Voluntary patients can choose to leave treatment at any time, subject
to some rules described in table 13.2.1. They can make decisions
about consenting to treatment or refusing it, and they have the same
rights to personal dignity, property and movement as other people.
A person’s voluntary admission to and discharge from a psychiatric
treatment service is regulated in some jurisdictions, as discussed in
table 13.2.1.

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TABLE 13.2.1 Voluntary treatment for mental illness:

legislation and principles
NSW Mental Health Act 1990
Under ss 12–19:
• A person may voluntarily admit themselves to a psychiatric hospital.
If the person is under 16 their parent or guardian must be contacted.
• A person under 14 cannot be admitted if a parent has objected.
• A person under guardianship cannot be admitted if the guardian
objects.
• A medical officer may refuse admission if they are satisfied that
the person will not benefit from treatment as a voluntary (informal)
patient, or they may discharge them.
• Such decisions can be appealed to the medical superintendent,
who must review the decision as soon as practicable.
• The Mental Health Review Tribunal must review the treatment of an
informal patient every 12 months.
NT Mental Health & Related Services Act 1998
Under ss 25–31:
• A person who is 14 or over may apply to be admitted as a voluntary
patient.
• A parent or guardian of a person under 18 may apply to have them
admitted as a voluntary patient.
• A medical practitioner in the facility must examine the person and
be satisfied that they have given informed consent to admission.
• The person must be examined by an authorised psychiatrist no
later than 24 hours after admission. The psychiatrist can confirm
the admission if they believe that the person has given informed
consent.
• If the psychiatrist is unsure whether the person can give informed
consent they must apply to the Mental Health Review Tribunal to
determine capacity to give consent.
• Admission must be refused if the person is not likely to benefit from
treatment.
• A person under 18 cannot to be admitted as a voluntary patient
unless they can be cared for and treated in a manner that gives
due regard to their age, culture, gender and maturity and, where
appropriate and possible, separately from adults.
• When a person under 18 is admitted the medical practitioner must
take all reasonable steps to inform the person’s parents or guardian
that they have been admitted as soon as practicable.
• If the medical practitioner believes, on reasonable grounds, that it
is not in the best interests of the person to inform their parents or
guardian, the practitioner should inform an authorised person under
the Community Welfare Act.
• A guardian may apply to admit a person under guardianship
voluntarily. A medical practitioner must examine the person within
24 hours of the application. The person cannot be admitted unless
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= TABLE 13.2.1 Voluntary treatment for mental illness:

legislation and principles
the practitioner is satisfied that they are willing to be admitted, they
do not fulfil the criteria for admission as an involuntary patient, and
they are likely to benefit from being admitted.
• A voluntary patient can leave at any time. However, a medical
practitioner or senior nurse may detain the person for 6 hours if
they believe that the person may fulfil the criteria for admission as
an involuntary patient. Reasonable force may be used to detain the
person, and they may be kept in seclusion.
SA Mental Health Act 1993
Under s 11:
• A person may be admitted to a treatment centre at their own
request.
• A voluntary patient may leave the centre at any time.
Tas Mental Health 1996
Under ss 19–20:
• A person over 14 can seek voluntary admission.
• A person under 14 can be admitted voluntarily by a parent, as long
as the child does not resist.
• Medical practitioners can refuse admission, but they must give
the applicant reasons, and advise them of their right to a second
opinion. If appropriate medical services are available elsewhere,
they must tell the applicant how to obtain the services.
Under ss 22–23, voluntary patients can discharge themselves at any
time. However, a medical practitioner or approved nurse may detain
the person for up to 4 hours so that an assessment can be made of
whether the person should be admitted as an involuntary patient.

13.3 Involuntary treatment

[13.3.1] Under what circumstances can a person be treated involun-
tarily? People with mental illness can be apprehended, detained,
examined and treated without consent in limited circumstances,
primarily when they are at risk of harming themselves or others, or,
in some jurisdictions, when there are clear signs of deterioration in
their condition.
Applications must usually be made to mental health authorities
to have the person examined by a mental health professional. In
emergencies a person may be detained by police or health professionals
and taken to a treatment facility for examination. Examinations must
occur quickly. After examination, it might be decided that the person
should be detained for involuntary treatment for a period of time. Such
decisions are subject to review by mental health review authorities,

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normally on the application of the treatment service, the patient or

another interested person.
Legislative criteria for involuntary treatment are listed in table
13.3.1.

TABLE 13.3.1 Involuntary treatment for mental illness:

legislation and criteria
ACT Mental Health (Treatment & Care) Act 1994 Pts 4 & 5
Under s 14(1), a person can apply for a mental health order in relation
to a person who:
(a) is unable, because of mental dysfunction or mental illness—
(i) to make reasonable judgments about matters relating to his or her
health or safety; or
(ii) to do anything necessary for his or her health or safety;
and, as a result, the person’s health or safety is, or is likely to be,
substantially at risk; or
(b) is or is likely, because of mental dysfunction or mental illness, to do
serious harm to others.
Under s 37:
(1) If a police officer has reasonable grounds for believing that a person is
mentally dysfunctional or mentally ill and has attempted or is likely to
attempt—
(a) to commit suicide; or
(b) to inflict serious harm on himself or herself or another person;
the police officer may apprehend the person and take him or her to an
approved health facility.
(2) Where a doctor or mental health officer believes on reasonable grounds
that—
(a) a person is mentally dysfunctional or mentally ill and—
(i) as a consequence, requires immediate treatment or care; or
(ii) in the opinion of the doctor or mental health officer, the person’s
condition will deteriorate within 3 days to such an extent that the
person would require immediate treatment or care;
(b) the person has refused to receive that treatment or care; and
(c) detention is necessary for the person’s own health or safety, social or
financial wellbeing, or for the protection of members of the public;
and
(d) adequate treatment or care cannot be provided in a less restrictive
environment;
the doctor or mental health officer may apprehend the person and
take him or her to an approved health facility.
The patient must be examined within 4 hours (s 40), and can only be
detained for 3 days without an order from the Mental Health Tribunal (s 41).
NSW Mental Health Act 1990 Ch 4 Pt 4
Under s 21(1), a medical practitioner or ‘accredited person’ may certify
that a person is mentally ill or mentally disordered, and that they should
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= TABLE 13.3.1 Involuntary treatment for mental illness:

legislation and criteria
be admitted to a hospital as ‘no other appropriate means for dealing
with the person are reasonably available’.
Under s 24, the police may also apprehend and take a person to a
facility if they have reasonable grounds for believing that:
(a) the person is committing or has recently committed an offence and that it
would be beneficial to the welfare of the person that the person be dealt
with in accordance with this Act rather than otherwise in accordance with
law, or
(b) that the person has recently attempted to kill himself or herself or any
other person or that it is probable that the person will attempt to kill
himself or herself or any other person or attempt to cause serious bodily
harm to himself or herself or any other person.
The person must be examined within 12 hours (s 29(1)). The person
can be treated, but must only be prescribed the minimum medication,
consistent with proper care, to ensure that they are not prevented from
communicating adequately with anyone who might be engaged to
represent them (s 31(1)).
If the examining doctor believes the person is mentally ill or
disordered a second doctor must examine them (s 32(1)). If that doctor
agrees that the person is mentally ill or disordered, the person must be
brought before a magistrate (s 38(1)), who holds an inquiry, determines
whether the person is in fact mentally ill, and makes an order. The
magistrate can order that the person be detained in a hospital for
observation and/or treatment for up to 3 months (s 51(3)).
If the person is still mentally ill after the period ordered by the
magistrate further involuntary treatment must be authorised by the
Mental Health Review Tribunal (ss 56, 57). All detained patients must
have their situation reviewed by the tribunal every 6 months (s 62(1)).
NT Mental Health & Related Services Act 1998 Pts 3 & 6
Under s 14, involuntary treatment can be provided where:
• a person has a mental illness, and
• they are likely to cause themselves or another person imminent
harm, or are likely to suffer serious mental or physical deterioration,
unless treated, and
• they cannot give informed consent, or unreasonably refuse consent,
and
• there is no less restrictive alternative.
Under s 15, involuntary treatment can also be provided when:
(b) the person’s behaviour is, or within the immediately preceding 48 hours
has been, so irrational as to lead to the conclusion that—
(i) the person is experiencing or exhibiting a severe impairment of or
deviation from his or her customary or everyday ability to reason and
function in a socially acceptable and culturally appropriate manner; and
(ii) the person is behaving in an abnormally aggressive manner or is
engaging in seriously irresponsible conduct that justify a determination
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= TABLE 13.3.1 Involuntary treatment for mental illness:

legislation and criteria
that the person requires psychiatric assessment, treatment or
therapeutic care that is available at an approved treatment facility;
(c) unless the person receives treatment or care at an approved treatment
facility, he or she—
(i) is likely to cause imminent harm to himself or herself, to a particular
person or to any other person;
(ii) will represent a substantial danger to the general community; or
(iii) is likely to suffer serious mental or physical deterioration;
(d) the person is not capable of giving informed consent to the treatment or
care or has unreasonably refused to consent to the treatment or care;
and
(e) there is no less restrictive means of ensuring that the person receives the
treatment or care.
After admission a mentally ill person may be detained for psychiatric
examination for 24 hours or up to 7 days if the person who made
the recommendation for psychiatric examination was an authorised
psychiatric practitioner (s 39(1)).
Mentally disturbed patients can be detained for 72 hours,
which may be extended for a further 7 days on the certification of
2 authorised psychiatric practitioners that, while the person is not
mentally ill, they are likely otherwise to cause harm to themselves or
others, or suffer serious mental or physical deterioration (s 42).
Qld Mental Health Act 2000, Chs 2 & 4
Under s 17:
A request for assessment for a person must be made by someone who—
(a) is an adult; and
(b) reasonably believes the person has a mental illness of a nature, or to an
extent, that involuntary assessment is necessary; and
(c) has observed the person within 3 days before making the request.
Under s 19(1), a recommendation for assessment may only be made
by a doctor or authorised mental health practitioner who has examined
the person within the preceding 3 days. An ambulance officer or health
practitioner can then take the person to a mental health service for
assessment (s 25(1)).
Under s 13(1), the assessment criteria are:
(a) the person appears to have a mental illness;
(b) the person requires immediate assessment;
(c) the assessment can properly be made at an authorized mental health
service;
(d) there is a risk that the person may—
(i) cause harm to himself or herself or someone else;
(ii) suffer serious mental or physical deterioration;
(e) there is no less restrictive way of ensuring the person is assessed.
The assessment must occur within 24 hours (s 44(1)). Extensions of
time can be sought, but the person cannot be detained longer than 72
hours (s 47(2)). A treatment order can be made after assessment (s 108).
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= TABLE 13.3.1 Involuntary treatment for mental illness:

legislation and criteria
SA Mental Health Act 1993
Section 12 states:
(1) If, after examining a person, a medical practitioner is satisfied—
(a) that the person has a mental illness that requires immediate
treatment; and
(b) that such treatment is available in an approved treatment centre; and
(c) that the person should be admitted as a patient and detained in an
approved treatment centre in the interests of his or her own health
and safety or for the protection of other persons,
the medical practitioner may make an order for the immediate admission
and detention of the person in an approved treatment centre.
The patient should be examined by a psychiatrist within 24 hours or as
soon as possible thereafter. If the psychiatrist believes the continued
detention is justified the detention order can be confirmed for up to 21
days. A further 21-day order can be made if 2 psychiatrists think this is
justified after separate examinations (ss 12(3), (5), (6)).
Continuing detention can be authorised by the Guardianship Board
(s 13(1)).
Tas Mental Health 1996
Under s 25:
An application for an order for the admission and detention of a person as
an involuntary patient in an approved hospital may be made by—
(a) an authorised officer; or
(b) the person responsible for the person for whom admission to the
approved hospital is sought.
Under s 24:
A person may be detained as an involuntary patient in an approved hospital
if—
(a) the person appears to have a mental illness; and
(b) there is … a significant risk of harm to the person or others; and
(c) the detention of the person as an involuntary patient is necessary to
protect the person or others; and
(d) the approved hospital is properly equipped and staffed for the care or
treatment of the person.
The patient must be examined within 24 hours (s 26(4)), after which a
continuing care order can be made by 2 medical practitioners (s 28(2)).
Orders must be reviewed every 6 months (s 29(1)). Orders must also be
lodged with the Mental Health Review Tribunal and the tribunal must
review those orders within 28 days (s 52(1)).
Treatment can only be provided with the informed consent of the
patient or with an order from the Guardianship Board (s 31).
Vic Mental Health Act 1986
Section 8 states:
(1) The criteria for the involuntary treatment of a person under this Act are
that—
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= TABLE 13.3.1 Involuntary treatment for mental illness:

legislation and criteria
(a) the person appears to be mentally ill; and
(b) the person’s mental illness requires immediate treatment and that
treatment can be obtained by the person being subject to an
involuntary treatment order; and
(c) because of the person’s mental illness, involuntary treatment of
the person is necessary for his or her health or safety (whether to
prevent a deterioration in the person’s physical or mental condition or
otherwise) or for the protection of members of the public; and
(d) the person has refused or is unable to consent to the necessary
treatment for the mental illness; and
(e) the person cannot receive adequate treatment for the mental illness in
a manner less restrictive of his or her freedom of decision and action.
If a request and recommendation are made the person who made the
request has 72 hours to arrange for an assessment of the mentally
ill person by an approved mental health service or a mental health
practitioner (s 9(4), (5)(a)).
The police may apprehend a person who has, or is likely to, attempt
suicide or attempt to cause serious bodily harm to themselves or
someone else (s 10(1)). Police may also seek the order of a magistrate
to apprehend a person who is unable to take care of themselves
because of a mental illness, and transport them to a treatment facility
(s 11(1)).
Upon presentation to the mental health service an authorised
psychiatrist must examine the patient within 24 hours. If the involuntary
treatment order is confirmed the psychiatrist can make an order
for community treatment or order the person to remain detained
for 3 months. Extensions of time can be sought by application
to a committee consisting of the chief psychiatrist and two other
psychiatrists. The Secretary of the Dept of Human Services must be
notified and appeals can be made to the Mental Health Review Board.
WA Mental Health Act 1996
Under s 26(1):
A person should be an involuntary patient only if—
(a) the person has a mental illness requiring treatment;
(b) the treatment can be provided through detention in an authorised
hospital or through a community treatment order and is required to be so
provided in order—
(i) to protect the health or safety of that person or any other person;
(ii) to protect the person from self-inflicted harm [to their finances,
reputation or important personal relationships]; or
(iii) to prevent the person doing serious damage to any property;
(c) the person has refused or, due to the nature of the mental illness, is
unable to consent to the treatment; and
(d) the treatment cannot be adequately provided in a way that would involve
less restriction of the freedom of choice and movement of the person
than would result from the person being an involuntary patient.
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= TABLE 13.3.1 Involuntary treatment for mental illness:

legislation and criteria
A medical practitioner or an authorised mental health practitioner may
refer a person for examination by a psychiatrist at a hospital, or other
place where an examination can be performed (s 29), within 48 hours of
examining them (s 32). Referrals stay current for 7 days (s 36(2)). Police
can be asked to apprehend and transport the person to the hospital to
enforce the referral (s 34(1)).
Once a person arrives at the hospital, they must be examined
within 24 hours by a psychiatrist (s 36(1)(b)). The psychiatrist can order
that the person be detained for 28 days (s 48(2)). The person must be
examined before the end of this period (s 49(1)), and if necessary can
be detained for another 6 months (s 49(4)).

[13.3.2] What types of orders can be made? Each jurisdiction

provides for different types of treatment order to be made after a
person has been examined in a mental healthcare service or hospital.
Generally speaking, the main categories are:
• psychiatric treatment orders, where the treatment is ordered to
take place during a period when the person is detained
• community care orders, where the person is allowed back
into the community but must comply with a treatment regime
that might include, for example, taking medication, attending
counselling and making regular visits to a mental health
service. In some jurisdictions community care orders can also
require a person to live at a community care facility, or not to
engage in certain activities or meet with certain people.
The breach of a community care order can trigger the right to
apprehend the person and bring them back into the hospital setting
for further assessment.

13.4 Treatment issues

[13.4.1] Are any treatments prohibited? Some jurisdictions have
prohibited certain treatments: see table 13.4.1.

[13.4.2] How is electroconvulsive therapy regulated? Electrocon-

vulsive therapy (ECT) is a treatment in which an electric current is
used to induce an epileptiform convulsion in a person. The provi-
sion of this treatment is highly regulated in all jurisdictions except
Tasmania: see table 13.4.2.

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TABLE 13.4.1 Legislation prohibiting certain treatments for

mental illness
NSW Mental Health Act 1990
Section 197 prohibits deep sleep therapy and insulin coma therapy.
NT Mental Health & Related Services Act 1998
Section 58 bans psychosurgery, which is defined as:
(a) the use of a technique or procedure (including a surgical technique or
procedure), or of intracerebral electrodes, to create in a person’s brain a
lesion that, by itself or together with any other lesion created at the same
time or any other time, is intended to permanently alter the thoughts,
emotions or behaviour of the person; or
(b) the use of intracerebral electrodes to stimulate a person’s brain, without
creating a lesion, with the intent that, by itself or together with any other
stimulation at the same time or any other time, the stimulation will,
temporarily, influence or alter the thoughts, emotions or behaviour of the
person.
Section 59 prohibits deep sleep therapy and insulin coma or sub-coma
therapy, and s 60 bans the use of sterilisation treatments as treatments
for mental illness.
Qld Mental Health Act 2000
Section 162 prohibits insulin-induced coma therapy and deep sleep
therapy.
WA Mental Health Act 1996
Section 99 makes it an offence to administer deep sleep therapy and
insulin coma or sub-coma therapy.

TABLE 13.4.2 Electroconvulsive therapy: legislation and

requirements
ACT Mental Health (Treatment & Care) Act 1994
Informed consent is required from the patient before ECT can be
administered (s 55A(a)), unless there is an order from the Mental Health
Tribunal (s 55E). Under s 54, informed consent requires that:
(a) the person has been given a clear explanation of the procedure that
contains sufficient information to enable the person to make a
balanced judgment about whether or not to consent to the procedure;
and
(b) the person has been given an adequate description (without exaggeration
or concealment) of the benefits, discomfort and risks involved in the
procedure; and
(c) the person has been advised of all alternative treatments reasonably
available that may be of benefit to the person; and
(d) the person has been given an opportunity to ask any questions about
the procedure, those questions have been answered and the person
appears to have understood the answers; and
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= TABLE 13.4.2 Electroconvulsive therapy: legislation and

requirements
(e) a full disclosure has been made to the person of any financial relationship
between the person seeking to obtain the consent, the doctor who
is proposing to conduct the procedure or both (as the case may be)
and the psychiatric institution at which it is proposed to conduct the
procedure; and
(f) the person has been given, has read and appears to have understood a
notice stating that—
(i) the person has the right to obtain independent legal and medical
advice and any other independent advice or assistance before giving
informed consent; and
(ii) the person is free to refuse or withdraw consent and to have the
procedure discontinued at any time; and
(g) the person has been given an information statement.
Section 55A(b) states that consent is not valid if the person has had
ECT administered on 10 or more occasions since the consent.
Under s 55F(1), application for an ECT order from the Mental Health
Tribunal can be made by the chief psychiatrist or a doctor if:
(a) a psychiatric treatment order is in force in relation to the person; and
(b) the chief psychiatrist or doctor believes on reasonable grounds that—
(i) the administration of electroconvulsive therapy is likely to result in
substantial benefit to the person; and
(ii) either—
(A) all other reasonable forms of treatment available have been tried
but have not been successful; or
(B) the treatment is the most appropriate treatment reasonably
available.
The application must also be supported by the evidence of a
psychiatrist other than the applicant (s 55F(2)).
Under s 55G, the tribunal can consent to the ECT if the patient has
given consent and not withdrawn it or, if the patient is incapable of
giving consent, the ECT is likely to result in substantial benefit to the
person, and:
(b) (iii) either—
(A) all other reasonable forms of treatment available have been tried
but have not been successful; or
(B) the treatment is the most appropriate treatment reasonably
available.
Emergency ECT can be given under an order from the tribunal for
people over 16. The chief psychiatrist and another doctor must lodge
an application (s 55M(1)), which will be approved if the therapy is
necessary to save the person’s life (s 55N(1)(d)).
NSW Mental Health Act 1990
ECT can only be administered with the informed consent of the patient
or under an order from the Mental Health Review Tribunal.
Under s 185(1), ECT can be administered to informal patients:
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= TABLE 13.4.2 Electroconvulsive therapy: legislation and

requirements
(a) if the person is capable of giving informed consent to the administration
to the person of the treatment and has given that consent, in writing, in
the prescribed form, and
(b) if 2 medical practitioners, at least one of whom is a psychiatrist, certify, in
writing, that … they are of the opinion that the treatment is a reasonable
and proper treatment to be administered to the person and is necessary
or desirable for the safety or welfare of the person.
Under s 183(1), before consent is obtained:
(a) a fair explanation must be made to the person of the techniques or
procedures to be followed, including an identification and explanation
of any technique or procedure about which there is not sufficient data
to recommend it as a recognised treatment or to reliably predict the
outcome of its performance, and
(b) a full description must be given, without exaggeration or concealment,
to the person of the possible attendant discomforts and risks (including
possible loss of memory), if any, and
(c) a full description must be given to the person of the benefits, if any, to be
expected, and
(d) a full disclosure must be made, without exaggeration or concealment,
to the person of appropriate alternative treatments, if any, that would be
advantageous for the person, and
(e) an offer must be made to the person to answer any inquiries concerning
the procedures or any part of them, and
(f) notice must be given to the person that the person is free to refuse or to
withdraw consent and to discontinue the procedures or any of them at
any time, and
(g) a full disclosure must be made to the person of any financial relationship
between the person proposing the administration of the treatment or the
medical practitioner who proposes to administer the treatment, or both,
and the hospital or institution in which it is proposed to administer the
treatment, and
(h) notice must be given to the person that the person has the right to obtain
legal and medical advice and to be represented before giving consent,
and
(i) any question relating to the techniques or procedures to be followed that
is asked by the person must have been answered and the answers must
appear to have been understood by the person.
An application can be made to the tribunal to determine whether
the person is capable of giving informed consent and has given that
consent (s 185(2)).
ECT can be administered to involuntary patients under an order
from the tribunal (s 187). Under s 188(1), application can be made by
the medical superintendent if at least 2 medical practitioners (one of
whom is a psychiatrist) certify that ECT is:
(a) a reasonable and proper treatment to be administered to the patient or
person, and
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= TABLE 13.4.2 Electroconvulsive therapy: legislation and

requirements
(b) necessary or desirable for the safety or welfare of the patient or person.
Under s 190, notice of the application must be given (with the
patient’s consent) to the nearest relative of the patient or a relative
nominated by them, their guardian, if any, and up to 2 personal friends
of the person.
Under s 194, the tribunal may determine that:
• the patient is capable of giving informed consent and has given that
consent, or
• if the patient has refused consent or is incapable of giving informed
consent, ECT ‘is a reasonable and proper treatment, and is
necessary or desirable for the safety or welfare of the person’.
NT Mental Health & Related Services Act 1998
ECT cannot be performed without consent or an order from the
Mental Health Review Tribunal (s 66(1)). Under s 66(2), the tribunal can
authorise ECT if it:
(a) is satisfied that the person is unable to give informed consent to the
treatment;
(b) receives a report from 2 authorised psychiatric practitioners that they are
satisfied … that electro convulsive therapy is a reasonable and proper
treatment to be administered and that without the treatment the person is
likely to suffer serious mental or physical deterioration; and
(c) is satisfied that—
(i) all reasonable efforts have been made to consult the person’s primary
care provider, or if there is no primary care provider, a person who is
closely involved in the treatment or care of the person; or
(ii) there is a valid reason for not complying with subparagraph (i).
Under s 66(3), ECT may also be performed on an involuntary patient if:
2 authorised psychiatric practitioners are satisfied that it is immediately
necessary—
(a) to save the person’s life;
(b) to prevent the person suffering serious mental or physical deterioration; or
(c) to relieve severe distress.
Qld Mental Health Act 2000
Section 139 states that ECT cannot be performed without consent
or an order from the Mental Health Review Tribunal, and cannot
be performed on voluntary patients if they object. Under s 229, a
psychiatrist can apply to the tribunal to perform ECT on a person
incapable of giving informed consent if the psychiatrist believes it to be
the most clinically appropriate treatment.
Under s 140(2), a doctor may perform ECT on an involuntary patient
if a psychiatrist and the medical superintendent certify in writing that it
is necessary to:
(a) save the patient’s life; or
(b) prevent the patient from suffering irreparable harm.
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= TABLE 13.4.2 Electroconvulsive therapy: legislation and

requirements
SA Mental Health Act 1993
ECT is defined as a ‘Category B’ treatment (s 3). ECT must be
administered with the informed consent of the patient if they are
competent. If the patient is incapable of giving consent and is under
16, consent can be given by the patient’s guardian. If the incompetent
patient is over 16 consent can be obtained from the patient’s medical
agent or the Guardianship Board (s 22(1)(b)(ii)).
Under s 22(2):
Consent to a particular episode of category B treatment is not required if—
(a) the nature of the patient’s mental illness is such that administration of that
particular episode of treatment is urgently needed for the protection of
the patient or other persons; and
(b) in the circumstances it is not practicable to obtain that consent.
Vic Mental Health Act 1986
ECT must be administered with the informed consent of the patient (s
73). Under s 53B(1), informed consent must be in writing, and given
after:
(a) the person has been given a clear explanation containing sufficient
information to enable him or her to make a balanced judgement; and
(b) the person has been given an adequate description of benefits,
discomforts and risks without exaggeration or concealment; and
(c) the person has been advised of any beneficial alternative treatments; and
(d) any relevant questions asked by the person have been answered and the
answers have been understood by the person; and
(e) a full disclosure has been made of any financial relationship between the
person seeking informed consent or the registered medical practitioner
who proposes to perform the treatment, or both, and the service,
hospital or clinic in which it is proposed to perform the treatment will be
given; and
(f) sub-sections (2) and (3) have been complied with.
Under s 53B(2), a prescribed written statement must also be supplied:
(a) advising the person as to his or her legal rights and other entitlements
including—
(i) the right to obtain legal and medical advice (including a second
psychiatric opinion) and to be represented before giving consent; and
(ii) the right to refuse or withdraw his or her consent and to discontinue
all or any part of the treatment at any time; and
(b) containing any other information relating to the treatment that the
Department considers relevant.
Under s 53B(3), an oral explanation of the information must also be
given in the language, mode of communication or terms which the
patient is most likely to understand.
Informed consent is not necessary if ECT is urgently needed (s 73(4)).
Under s 73(3), if the patient is incapable of giving informed consent
ECT may be performed if:
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= TABLE 13.4.2 Electroconvulsive therapy: legislation and

requirements
(a) the authorized psychiatrist has authorized the electroconvulsive therapy
proposed to be performed after being satisfied that—
(i) the electroconvulsive therapy has clinical merit and is appropriate; and
(ii) having regard to any benefits, discomforts or risks the
electroconvulsive therapy should be performed; and
(iii) any beneficial alternative treatments have been considered; and
(iv) unless the electroconvulsive therapy is performed, the patient is likely
to suffer a significant deterioration in his or her physical or mental
condition; and
(b) all reasonable efforts have been made to notify the patient’s guardian
or primary carer of the proposed performance of the electroconvulsive
therapy.
No more than 6 treatments can be given over a period with not more
than 7 days elapsing between any 2 treatments (s 72(2)).
WA Mental Health Act 1996
ECT cannot be given to voluntary patients without their informed
consent (s 107(1)).
For involuntary patients, ECT can only be given if it has been
recommended by the treating psychiatrist and approved by another
psychiatrist (s 104) if the second psychiatrist is satisfied that the
proposed therapy has clinical merit and would be appropriate in
the circumstances. The approving psychiatrist must have regard to
whether the patient has consented to ECT (s 105). Under s 106:
(1) Where the psychiatrist does not approve the recommendation that
electroconvulsive therapy be performed, the psychiatrist making the
recommendation is to refer the matter in writing to the Mental Health
Review Board.
(2) The Board is not authorised to substitute its decision for that of the
psychiatrist withholding approval and if the psychiatrist continues to
withhold approval of the recommendation the Board may —
(a) recommend to the treating psychiatrist an alternative treatment;
(b) transfer responsibility for treating the person from the treating
psychiatrist to another psychiatrist; or
(c) in the case of an involuntary patient, order that the person is no longer
an involuntary patient.
Under ss 104(2) and 107(2), ECT can also be given as emergency
psychiatric treatment if it is necessary:
(a) to save the person’s life; or
(b) to prevent the person from behaving in a way that can be expected to
result in serious physical harm to the person or any other person
(s 113(1)).

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 Mental health [13.4.3]

[13.4.3] How is psychosurgery regulated? Psychosurgery (some-

times called psychiatric surgery) occurs when surgery is used on the
brain (through either the creation of lesions or the use of electrodes)
to effect changes in a patient’s thoughts, emotions or behaviour.
As with ECT, concerns about safeguarding the rights of patients
have led to a number of regulatory controls over psychosurgery:
see table 13.4.3.

TABLE 13.4.3 Psychosurgery: legislation and requirements

ACT Mental Health (Treatment & Care) Act 1994
If a patient is competent, psychiatric surgery can only be performed
with their informed consent and the approval of the chief psychiatrist.
Under s 62(1), the chief psychiatric must refer the application to a
special committee consisting of:
(a) a psychiatrist; and
(b) a neurosurgeon; and
(c) a legal practitioner; and
(d) a clinical psychologist; and
(e) a social worker (s 67(1)).
Under s 62(3):
A committee shall not recommend that the chief psychiatrist should approve
the performance of psychiatric surgery unless—
(a) the committee is satisfied—
(i) that there are reasonable grounds for believing that the performance
of the surgery will result in substantial benefit to the person on whom
it is proposed to be performed; and
(ii) that all alternative forms of treatment reasonably available have failed,
or are likely to fail, to benefit the person; and
(b) the recommendation is supported by the psychiatrist and the
neurosurgeon on the committee.
Under s 64, the chief psychiatrist must act in accordance with the
committee’s recommendations.
Under s 65, if the patient is not competent the Supreme Court may
make an order approving the psychosurgery on the grounds that:
• the patient has a mental illness, and
• the patient has neither given informed consent nor refused consent, and
• there are grounds for believing that the surgery is likely to result in
substantial benefit to the patient, and
• all alternative forms of treatment reasonably available have failed, or
are likely to fail, to benefit them.
NSW Mental Health Act 1990 Ch 7 Pt 1 Div 1
Psychosurgery cannot be performed without the informed consent
of the patient and the approval of the Psychosurgery Review Board.
Under s 155(1):
Before the consent of a patient is obtained to the performance on the patient
of psychosurgery:
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= TABLE 13.4.3 Psychosurgery: legislation and requirements

(a) a fair explanation must be made to the patient of the techniques or
procedures to be followed, including an identification and explanation
of any technique or procedure about which there is not sufficient data
to recommend it as a recognised treatment or to reliably predict the
outcome of its performance, and
(b) a full description must be given, without exaggeration or concealment, to
the patient of possible discomforts and risks, and
(c) a full description must be given to the patient of the benefits, if any, to be
expected, and
(d) a full disclosure must be made, without exaggeration or concealment,
to the patient of appropriate alternative treatments, if any, that would be
advantageous for the patient, and
(e) an offer must be made to the patient to answer any inquiries concerning
the procedures or any part of them, and
(f) notice must be given to the patient that the patient is free to refuse or to
withdraw his or her consent and to discontinue the procedures or any of
them at any time, and
(g) a full disclosure must be made to the patient of any financial relationship
between the person by whom consent for psychosurgery is sought or
the medical practitioner who proposes to perform the psychosurgery, or
both, and the hospital or institution in which it is proposed to perform the
psychosurgery, and
(h) notice must be given to the patient that the patient has the right to legal
advice and representation at any time during considerations relating to
the performance of psychosurgery on the patient, and
(i) any question relating to the techniques or procedures to be followed that
is asked by the patient must have been answered and the answers must
appear to have been understood by the patient.
The board must conduct a hearing to determine the application (s 158).
Under s 159:
At the hearing before the Board of an application for consent to perform
psychosurgery:
(a) the patient is, unless the Board otherwise approves, to attend and is
entitled to be heard, and
(b) the applicant and the patient’s nearest relative, if any, are entitled to
attend and to be heard, and
(c) a personal friend, nominated by the patient, is entitled to attend, and
(d) the patient may be represented by an Australian legal practitioner.
Hearings are normally public (s 160).
Under s 169 the board may consent to the psychosurgery if it is
satisfied that:
(a) the patient the subject of the application is capable of giving informed
consent to the psychosurgery, and
(b) the patient has given that consent, and
(c) the psychosurgery has clinical merit and is appropriate for the patient, and
(d) the person or persons proposing to undertake the performance of the
psychosurgery is or are properly qualified to do so, and
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= TABLE 13.4.3 Psychosurgery: legislation and requirements

(e) the hospital or institution in which it is proposed to perform the
psychosurgery is a proper place in which to perform it, and
(f) all other reasonable treatments for the patient have been adequately and
skilfully administered without sufficient resulting benefits to the patient,
and
(g) there do not appear to be any other considerations that should be taken
into account.
If the patient is incapable approval must be obtained from the Supreme
Court. Under s 156, the following people are ‘conclusively presumed’ to
be incapable of giving informed consent:
(a) persons under the age of 18 years,
(b) persons convicted of any crime and under sentence in respect of the
conviction, whether in custody or not and whether the sentence has
been suspended or not,
(c) persons awaiting trial on a criminal charge, whether in custody or not,
(d) persons released on licence after serving some portion of a sentence in
respect of a conviction for crime,
(e) persons convicted of any crime, who are on probation or parole,
(f) persons convicted of any crime, who have escaped from lawful custody,
(g) persons released on recognizance in respect of a criminal charge,
whether or not they have been found guilty in respect of that charge,
during the period of that recognizance,
(h) persons under arrest in respect of a criminal charge,
(i) temporary patients, continued treatment patients or forensic patients.
NT Mental Health & Related Services Act 1998
Psychosurgery is prohibited under s 58: see [13.4.1].
Qld Mental Health Act 2000
Under s 161(2):
A doctor may perform psychosurgery on a person if—
(a) the person on whom the treatment is performed has given informed
consent to the treatment; and
(b) the tribunal has given approval to the treatment.
SA Mental Health Act 1993
Psychosurgery is defined as a category A treatment (s 3), and as such
can only go ahead if (s 22(1)(a)):
(i) the treatment has been authorised by the person who is to administer it
and by two psychiatrists (at least one of whom is a senior psychiatrist),
each of whom has separately examined the patient; and
(ii) the patient is capable of giving effective consent and consents in writing
to the treatment.
Vic Mental Health Act 1986 Pt 5 Div 1
Psychosurgery cannot be performed without the informed consent
of the patient and the approval of the Psychosurgery Review Board.
Under s 53B(1), informed consent can only be given (in writing) after:
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= TABLE 13.4.3 Psychosurgery: legislation and requirements

(a) the person has been given a clear explanation containing sufficient
information to enable him or her to make a balanced judgement; and
(b) the person has been given an adequate description of benefits,
discomforts and risks without exaggeration or concealment; and
(c) the person has been advised of any beneficial alternative treatments; and
(d) any relevant questions asked by the person have been answered and the
answers have been understood by the person; and
(e) a full disclosure has been made of any financial relationship between the
person seeking informed consent or the registered medical practitioner
who proposes to perform the treatment, or both, and the service,
hospital or clinic in which it is proposed to perform the treatment.
Under s 59(2), notice of any application to the Psychosurgery Review
Board must be sent to the applicant, the patient, anyone nominated by
the patient as an advocate, and the primary carer.
The patient may also be represented by a lawyer (s 59(5)(a)).
Under s 65, the board can give its approval if it is satisfied that the
patient has the capacity to give informed consent (s 65(a)) and has
given informed consent (s 65(b)), and that:
(c) the proposed psychosurgery has clinical merit and is appropriate;
(d) any person proposing to perform the psychosurgery is properly qualified;
(e) the service, hospital or clinic in which it is proposed to perform the
psychosurgery is an appropriate place;
(f) all other reasonable treatments have already been adequately and skilfully
administered without sufficient and lasting benefit;
(g) notice of the hearing has been given in accordance with section 59(2).
WA Mental Health Act 1996
Under s 101(1), psychosurgery cannot be approved unless the patient
gives informed consent and the procedure is approved by the Mental
Health Review Board. Under s 103, before giving approval, the board
must be satisfied that:
(a) the person has the capacity to give, and has given, informed consent to
the proposed psychosurgery;
(b) the proposed psychosurgery has clinical merit and is appropriate in the
circumstances;
(c) every available alternative to psychosurgery that could reasonably be
regarded as likely to produce a sufficient and lasting benefit has been
satisfactorily given without a sufficient and lasting benefit resulting;
(d) the person who is to perform the proposed psychosurgery is suitably
qualified; and
(e) the place where it is proposed to perform the psychosurgery is a suitable
place.

[13.4.4] Can seclusion and restraint be used as treatment? Yes.

However, most jurisdictions place strict limits and controls on the
use of both seclusion and mechanical restraint: see table 13.4.4.

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TABLE 13.4.4 Seclusion and restraint of psychiatric patients:

legislation and requirements
ACT Mental Health (Treatment & Care) Act 1994
Section 35(2) empowers the chief psychiatrist to confine or restrain a
patient:
(c) …
(i) to prevent the person from causing harm to himself, herself or
someone else; or
(ii) to ensure that the person remains in custody under the order; and
(d) subject the person to involuntary seclusion if satisfied that it is the only
way in the circumstances to prevent the person from causing harm to
himself, herself or someone else.
The chief psychiatrist must consider the objectives of the Act and the
patient’s right to freedom, dignity and self-respect (s 35(3)). Orders for
restraint or seclusion must be recorded in the patient’s records and a
register and the public advocate must be advised in writing within 24
hours (s 35(4)).
NT Mental Health & Related Services Act 1998
Under s 61:
(3) Mechanical restraint of a person … may only be applied where no other
less restrictive method of control is applicable or appropriate and it is
necessary for one or more of the following—
(a) for the purpose of medical treatment of the person;
(b) to prevent the person from causing injury to himself or herself or any
other person;
(c) to prevent the person from persistently destroying property.
(4) Mechanical restraint … must not be applied unless it is approved—
(a) by an authorised psychiatric practitioner, or
(b) in the case of an emergency, by the senior registered nurse on duty.
(5) The senior registered nurse on duty must notify the person-in-charge of the
approved treatment facility and an authorised psychiatric practitioner as
soon as practicable after approving the mechanical restraint of a person.
…
(7) Mechanical restraint and seclusion may be applied to a person without
the person’s consent.
(8) A person to whom mechanical restraint is applied—
(a) must be kept under continuous observation by a registered nurse or
medical practitioner;
(b) must be reviewed, as clinically appropriate to his or her condition, by
a registered nurse at intervals not longer than 15 minutes
(c) … must be examined by a medical practitioner at intervals not
longer than 4 hours [this can be varied by an authorised psychiatric
practitioner: s 61(9)];
(d) must be reviewed by an authorised psychiatric practitioner, if the
mechanical restraint remains applied for 6 hours;
(e) must be supplied with bedding and clothing that is appropriate in the
circumstances;
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= TABLE 13.4.4 Seclusion and restraint of psychiatric patients:

legislation and requirements
(f) must be provided with food and drink at appropriate times;
(g) must have access to adequate toilet facilities; and
(h) must be provided with any other psychological and physical care
appropriate to the person’s needs.
…
(10) Mechanical restraint or seclusion must not be applied to a person who is
admitted as a voluntary patient for longer than 12 hours.
Under s 62, the same criteria apply to the seclusion of a patient.
Qld Mental Health Act 2000
Section 143 allows a doctor to authorise the use of mechanical
restraint on an involuntary patient ‘only if the doctor is satisfied it is the
most clinically appropriate way of preventing injury to the patient or
someone else’.
Under s 144:
The doctor must give the authorisation by recording the following details in
the patient’s clinical file—
(a) the type of restraint authorised;
(b) the reasons for the restraint;
(c) any restrictions on the circumstances in which restraint may be applied;
(d) the maximum period or periods for which the restraint may be applied;
(e) the intervals at which the patient must be observed while the restraint is
applied;
(f) any special measures necessary to ensure the patient’s proper treatment
while the restraint is applied;
(g) the time when the authorisation ends.
Section 145 requires the senior registered nurse on duty to:
(a) ensure the restraint is applied as authorised by the doctor; and
(b) ensure the patient’s reasonable needs are met, including … being given—
(i) sufficient bedding and clothing; and
(ii) sufficient food and drink; and
(iii) access to toilet facilities; and
(c) record the following details in the patient’s clinical file—
(i) the type of restraint applied;
(ii) if the doctor has stated any restrictions on the application of the
restraint—the circumstances in which the restraint was applied;
(iii) the time the restraint was applied;
(iv) the person who applied the restraint;
(v) the time the restraint was removed.
The restraint must be removed if the senior registered nurse on duty is
satisfied that the patient can be safely treated without it (s 146).
Under s 150:
Seclusion of an involuntary patient in an in-patient facility of an authorised
mental health service may be authorised—
(a) at any time, by a doctor; or
(b) in urgent circumstances, by the senior registered nurse on duty.
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= TABLE 13.4.4 Seclusion and restraint of psychiatric patients:

legislation and requirements
Under s 151, seclusion must not be authorised unless the doctor or
nurse is reasonably satisfied that:
(a) it is necessary to protect the patient or other persons from imminent
physical harm; and
(b) there is no less restrictive way of ensuring the safety of the patient or
others.
The patient’s consent is not required for seclusion (s 152).
Under s 153, the order for seclusion must be in writing, and:
(2) … must state—
(a) the reasons for the seclusion; and
(b) the time the order is made; and
(c) the time (not longer than 12 hours after the order is made) when it
ends; and
(d) whether the senior registered nurse on duty is authorised to release
the patient from, or return the patient to, seclusion; and
(e) the specific measures necessary to ensure the patient’s proper
treatment while secluded.
Under s 154:
The senior registered nurse on duty must ensure the patient is continuously
observed unless [if the seclusion was ordered by a doctor] the doctor states
in the order—
(a) that it is not clinically necessary to continuously observe the patient while
secluded; and
(b) the intervals (not longer than 15 minutes) at which the patient must be
observed.
Under s 158:
The senior registered nurse on duty must ensure the patient’s reasonable
needs are met, including, for example, being given—
(a) sufficient bedding and clothing; and
(b) sufficient food and drink; and
(c) access to toilet facilities.
Tas Mental Health Act 1996
Under s 34:
An involuntary patient … may be placed under bodily restraint only if the
restraint—
(a) is necessary—
(i) for medical treatment of the patient; or
(ii) to prevent injury to the patient or to others; or
(iii) to prevent the patient from persistently destroying property; and
(b) is authorised by a medical practitioner or an approved psychiatric nurse
for a period of less than 4 hours; and
(c) is applied for no longer than authorised or if the restraint is in accordance
with guidelines issued by the Mental Health Tribunal.
Under s 35:
(1) An involuntary patient … may be kept in seclusion only if—
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= TABLE 13.4.4 Seclusion and restraint of psychiatric patients:

legislation and requirements
(a) the seclusion is necessary for the protection of the patient or other
persons with whom the patient would otherwise be in contact;
and
(b) the seclusion is authorised by a medical practitioner or an approved
psychiatric nurse; and
(c) the patient is kept in seclusion for no longer than authorised.
(2) Where the patient is kept in seclusion—
(a) The patient must:
(i) be visited by a member of the nursing staff at intervals of not more
than 15 minutes or in accordance with guidelines issued by the
Mental Health Tribunal; and
(ii) be examined at intervals of not more than 4 hours by a medical
practitioner; and
(b) bedding and clothing that is appropriate in the circumstances must be
provided; and
(c) food and drink must be provided at the appropriate times; and
(d) adequate toilet arrangements must be made for the patient.
Vic Mental Health Act 1986
Under s 81(1), mechanical restraint can only be applied:
(a) if that restraint is necessary—
(i) for the purpose of the medical treatment of the person; or
(ii) to prevent the person from causing injury to himself or herself or any
other person; or
(iii) to prevent the person from persistently destroying property; and
(b) if the use and form of restraint has been—
(i) approved by the authorised psychiatrist; or
(ii) in the case of an emergency, authorised by the senior registered nurse on
duty and notified to a registered medical practitioner without delay.
Under s 81(1C), it is not necessary to obtain a person’s consent to
mechanical restraint.
Under s 81(1D), a patient under restraint must:
(a) be under continuous observation by a registered nurse or registered
medical practitioner; and
(b) be reviewed as clinically appropriate to his or her condition at intervals of
not more than 15 minutes by a registered nurse; and
(c) be examined at intervals of not more than 4 hours by a registered
medical practitioner [the medical practitioner can vary this interval:
s 81(1E)]; and
(d) be supplied with bedding and clothing which is appropriate in the
circumstances; and
(e) be provided with food and drink at the appropriate times; and
(f) be provided with adequate toilet arrangements.
Under s 81(1F), if the continued application of mechanical restraint is
no longer necessary, it should be ceased without delay.
Similar criteria apply to the seclusion of a patient under s 82.
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= TABLE 13.4.4 Seclusion and restraint of psychiatric patients:

legislation and requirements
WA Mental Health Act 1996
Mechanical restraint (s 122(a)) or seclusion (118(a)) must be authorised
by a medical practitioner or, in an emergency, a senior mental health
practitioner.
Under s 123(1), mechanical restraint cannot be ordered unless it is
necessary for:
(a) the medical treatment of the patient;
(b) the protection, safety, or well-being of:
(i) the patient; or
(ii) another person with whom the patient might come in contact if the
restraint is not used; or
(c) preventing the patient from persistently destroying property.
Under s 119(1), seclusion cannot be ordered unless it is necessary for
the protection, safety, or well-being of:
(a) the patient; or
(b) another person with whom the patient might come in contact if not kept
in seclusion.
Authorisation for mechanical restraint must be in writing and include
particulars of the period for which the authorisation is given (s 122(2)).
If a senior mental health practitioner authorises the restraint they must
notify a medical practitioner as soon as is practicable (s 122(3)).
Similar authorisation requirements apply to seclusion under s 119(2)
& (3).
Under s 120, the treating psychiatrist must ensure that, for a
secluded patient:
(a) appropriate provision is made for the basic needs of the patient, including
bedding, clothing, food, drink, and toilet facilities;
(b) the patient is observed by a mental health practitioner at regular intervals,
as prescribed by the regulations;
(c) the patient is regularly monitored by a psychiatrist or another medical
practitioner; and
(d) a report of the patient being kept in seclusion is made as soon as is
practicable to the Mental Health Review Board.

[13.4.5] How are non-psychiatric treatments provided to mental

health patients? People in a mental healthcare setting also need
access to treatment for other, non-psychiatric illnesses. As all adults
are presumed to be competent, the starting point for non-psychiatric
treatments in the mental healthcare setting is that the patient’s consent
must be sought. If the patient is incompetent, in the absence of
specific legislation the ordinary principles governing the treatment
of incompetent patients apply: see chapter 8.
New South Wales, the Northern Territory, Victoria and Western

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Australia have enacted specific provisions to deal with the provision

of such treatment: see table 13.4.5.

TABLE 13.4.5 Non-psychiatric treatments of psychiatric

patients: legislation and requirements
NSW Mental Health Act 1990
Under s 201(1), surgical operations can be performed on involuntary
patients who are incompetent, who refuse to give consent or who
neither give nor withhold consent with the authorisation of the
‘prescribed person’ (the medical superintendent, deputy medical
superintendent, responsible medical officer or authorised officer),
when it is necessary as a matter of urgency to save the patient’s life
or prevent serious damage to their health. Similar authorisation can be
given in the case of informal patients if they are incompetent (s 201(2)).
Notice of any emergency operation must be given to the nearest
relative and to the Mental Health Review Tribunal (s 203).
Section 204(2) allows for ‘special medical treatments’ (defined in
Sch 1 to effectively mean treatments leading to sterilisation) to be
performed:
(a) if the medical practitioner is of the opinion that it is necessary, as a matter
of urgency, to carry out the treatment on the patient in order to save the
patient’s life or to prevent serious damage to the patient’s health, or
(b) if the Tribunal consents to the carrying out of the treatment …
Special treatments cannot be carried out on patients under 16 (s 204(3)).
For all non-emergency surgical procedures the medical
superintendent must seek the agreement of the patient’s nearest
relative, even where the patient is competent. If the nearest relative
agrees the medical superintendent must apply to an authorised officer
for consent. If the nearest relative disagrees the application must go to
the Mental Health Review Tribunal (s 206).
NT Mental Health & Related Services Act 1998
Under s 63(3) a person cannot perform non-psychiatric treatment on a
patient unless:
(a) the informed consent of the patient is obtained;
(b) the treatment is approved by the Tribunal or an authorised psychiatric
practitioner … ; or
(c) where the person is [under guardianship], the consent of the guardian
or the Local Court to the treatment is obtained under [the Adult
Guardianship Act].
Under s 63(4), treatment may be performed without being approved if it
is immediately necessary:
(a) to save the life of the person or to prevent irreparable harm to the person;
(b) to remove a threat of permanent disability to the person;
(c) to remove a life threatening risk to, or to relieve acute pain of, the person.
If emergency treatment is provided it must be reported to the Tribunal
and to the Public Guardian as soon as possible after the treatment is
performed (s 63(5), (6)).
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= TABLE 13.4.5 Non-psychiatric treatments of psychiatric

patients: legislation and requirements
Under s 64(2), a major medical procedure cannot be performed on
an involuntary patient unless it is approved by the tribunal or, where
the person is under guardianship, the Local Court, except that under
s 64(3), it can be approved by an authorised psychiatric practitioner
where it is necessary:
(a) to save the life of the person; or
(b) to prevent irreparable harm to the person.
Under s 65:
A person must not perform a clinical trial or experimental treatment on a
person who is an involuntary patient or subject to a community management
order unless—
(a) the trial or treatment is approved by an ethics committee nominated by
the Chief Health Officer; and
(b) the informed consent of the person, or the approval of the Tribunal, to the
trial or treatment is obtained.
Vic Mental Health Act 1986
Informed consent must be sought from the patient for non-emergency
treatment. Under s 83(2), for non-major treatments informed consent is
given when free and voluntary consent is received after:
(a) the person has been given a clear explanation of the proposed non-
psychiatric treatment; and
(b) the person has been advised as to the reason why the non-psychiatric
treatment is necessary.
For major medical treatments, informed consent requires:
(a) the person to have been given a clear explanation containing sufficient
information to enable him or her to make a balanced judgement; and
(b) the person to have been given an adequate description of benefits,
discomforts and risks without exaggeration or concealment; and
(c) the person to have been advised of any beneficial alternative treatments;
and
(d) any relevant questions asked by the person to have been answered and
the answers must have been understood by the person; and
(e) a full disclosure to be made of any financial relationship between the
person seeking informed consent or the registered medical practitioner
who proposes to perform the treatment, or both, and the service,
hospital or clinic in which treatment will be given.
The guidelines issued by the chief psychiatrist define major treatments
as:
• any surgery performed under a general or regional anaesthetic
• the use of general or regional block anaesthetic for any purpose
• chemotherapy
• radiotherapy.
See Non-psychiatric treatment and special procedures (September
2005) at www.health.vic.gov.au/mentalhealth/cpg/non-psych.htm#5.
In an emergency, treatment can be provided if it is necessary, as a
matter of urgency:
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= TABLE 13.4.5 Non-psychiatric treatments of psychiatric

patients: legislation and requirements
• to save the patient’s life; or
• to prevent serious damage to the patient’s health; or
• to prevent the patient from suffering or continuing to suffer
significant pain or distress.
If the patient is not competent then consent may be given by the
patient’s medical agent, enduring guardian, guardian, or the authorised
psychiatrist, whomever is the first available to make the decision. In
the case of patients under 18 years consent can be given by a parent,
guardian or person appointed under the Children & Young Persons Act
1989. Alternatively the authorised psychiatrist can consent if there is no
one else reasonably available, willing and able.
WA Mental Health Act 1996
Section 110 allows the Chief Psychiatrist to approve non-psychiatric
medical treatments.

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapter 20
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 5

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 CHAPTER 14

Public health
14.1 Public health regulation
[14.1.1] What is public health law? Public health law ‘provides the
powers and creates the structures that assist the task of preventing
disease and allowing the opportunities for longer and healthier lives’
(Reynolds, 2004: 5). It covers a vast territory, including communicable
diseases, infection control, swimming pools and spas, hairdressing
and beauty therapy, air conditioning, body piercing, tobacco control,
epidemiological registries, immunisation, harm minimisation
strategies for drug addiction, water quality and food laws.
This chapter concentrates on the laws and regulations dealing
with notifiable diseases.
14.2 Notifiable diseases
[14.2.1] What diseases must be notified to health authorities? Each
state and territory has a list of notifiable diseases: see table 14.2.1. If
any health professional (such as a doctor, nurse practitioner, patholo-
gist, laboratory worker or hospital chief executive) has reasonable
grounds for suspecting that a patient has contracted a notifiable
disease, they must contact the health authority in that jurisdiction.
Failure to do so is an offence, which may attract a large fine.
With some infectious diseases, such as measles, the provisional
clinical diagnosis should prompt notification by the treating doctor,
so that early preventive measures can be taken. In many other cases,
a diagnosis will be notified to authorities by a pathology laboratory’s
automated systems.
The notice ordinarily includes details of the patient’s identity,
except for some sexually transmitted diseases. However, identify-
ing details may be reported in certain circumstances if there is a
danger to the public.
Reporting requirements are also listed in table 14.2.1.

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It is important to ensure that all reporting requirements are

complied with. Each institution should have clear reporting
policies. If you are unsure whether a notifiable disease has been
!
reported you should check with your supervisor or with the
appropriate public health authority.

TABLE 14.2.1 Notifiable diseases: legislation, requirements

and listed diseases
ACT Public Health Act 1997
Who must notify?
• medical practitioners
• authorised nurse practitioners
• pathologists, or their employers
• the person in charge of a hospital
• counsellors, including registered psychologists
Who must be notified?
Health Services, Communicable Disease Control, Howard Florey
Centenary House, 25 Mulley St Holder ACT 2611
• Communicable Diseases Control: (02) 6205 2155, (02) 6205 0711
• Immunisation: (02) 6205 2300, (02) 6205 0711
• CDC emergency pager (24 hours): (02) 6269 0495
Information required
The notifier must complete the Report of Notifiable Disease or Related
Death form and all requested information must be provided. When
reporting HIV/AIDS, hepatitis B (HBV), hepatitis C (HCV) and sexually
transmitted infection (STI) cases, the notifier should not provide full
family name, given name and residential details. The notifier must
provide the first two letters of the family name, first two letters of
the given name and postcode details. The rest of the details can be
submitted as per the Report of Notifiable Disease or Related Death
form. See Reporting of Notifiable Conditions Code of Practice 2006
(www.health.act.gov.au/c/health?a=da&did=10010026&pid=11525099
42).
Notifiable diseases
acquired immunodeficiency syndrome (AIDS); anthrax; arbovirus
infections (Barmah Forest virus, dengue virus, Japanese encephalitis
virus, Kunjin virus, Murray Valley encephalitis virus (notified as
Australian arboencephalitis in Victoria), Ross River virus, flavivirus
infection – unspecified or not otherwise classified); avian influenza
(quarantinable); botulism; brucellosis; campylobacteriosis; chlamydia
trachomatis; cholera (quarantinable); Creutzfeldt-Jakob disease (all
forms, including classical and vCJD); cryptosporidiosis; diphtheria;
donovanosis; equine morbillivirus; food poisoning (not elsewhere
specified); gastrointestinal illness cluster; giardiasis; gonococcal
infection; haemolytic uraemic syndrome (HUS); haemophilus influenzae
serotype b (Hib) (invasive only); hepatitis A; hepatitis B; hepatitis C;
hepatitis D; hepatitis E; hepatitis (infectious, not otherwise specified);
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and listed diseases
human immunodeficiency virus (HIV) infection; influenza laboratory-
confirmed; legionellosis; leprosy; leptospirosis; listeriosis; lyssavirus
(Australian bat lyssavirus, duvenhague virus, rabies (quarantinable),
European bat 1 & 2, lyssavirus unspecified); malaria; measles;
meningococcal disease (invasive); mumps; paratyphoid; pertussis;
plague (quarantinable); pneumococcal disease (invasive); poliomyelitis
(wild type and vaccine-associated); psittacosis (ornithosis); Q fever;
rubella and congenital rubella syndrome; SARS (quarantinable);
salmonellosis; shigellosis; Shiga toxin-producing and Vero toxin-
producing escherichia coli (STEC/VTEC); smallpox (quarantinable);
syphilis; tetanus; tuberculosis; tularaemia; typhoid; varicella;
viral haemorrhagic fevers (quarantinable) (lassa, marburg, ebola,
unspecified or otherwise unclassified); yellow fever (quarantinable);
yersiniosis
NSW Public Health Act 1991
Who must notify?
• medical practitioners (working outside of the hospital context) must
notify the director general of category 1 and 2 conditions
• laboratories must notify the director general of any positive tests for
category 3 conditions
• the chief executive officer of a hospital must notify the director
general immediately when made aware of any notifiable disease
in a patient, or otherwise when they have reasonable grounds for
believing that the patient has the notifiable disease
Notifiable diseases
In NSW there are a number of scheduled diseases which are divided
into 5 categories. The disease categories have different reporting and
treatment requirements. There is also a category of notifiable disease
which applies to chief executives of hospitals.
Category 1: To be notified by medical practitioners
congenital malformation in a child under 1 year; cystic fibrosis in a child
under 1 year; hypothyroidism in a child under 1 year; phenylketonuria
in a child under 1 year; pregnancy with a child having a congenital
malformation, cystic fibrosis, hypothyroidism, thalassaemia major or
phenylketonuria; sudden infant death syndrome; thalassaemia major in
a child under the age of 1 year
Category 2: To be notified by medical practitioners
AIDS; acute viral hepatitis; adverse event following immunisation; avian
influenza in humans; CJD and vCJD; foodborne illness in two or more
related cases; gastroenteritis among people of any age in an institution
(eg among persons in educational or residential institutions); leprosy;
measles; pertussis (whooping cough); SARS; smallpox; syphilis;
tuberculosis
Category 3: To be notified by laboratories
anthrax; arboviral infections; avian influenza in humans; botulism;
brucellosis; cancer; chancroid; chlamydia; cholera; congenital
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and listed diseases
malformation; CJD and vCJD; cryptosporidiosis; cystic fibrosis;
diphtheria; donovanosis; giardiasis; gonorrhoea; haemophilus
influenzae type b; hepatitis A; hepatitis B; hepatitis C; hepatitis
D (delta); hepatitis E; HIV infection; hypothyroidism; invasive
pneumococcal infection; influenza; lead poisoning (as defined
by a blood lead level of or above 15µg/dL); legionella infections;
leptospirosis; listeriosis; lymphogranuloma venereum; lyssavirus;
malaria; measles; meningococcal infections; mumps; pertussis
(whooping cough); phenylketonuria; plague; poliomyelitis; pregnancy
with a child having a congenital malformation, cystic fibrosis,
hypothyroidism, thalassaemia major or phenylketonuria; psittacosis;
Q fever; rabies; rubella; salmonella infections; SARS; shigellosis;
smallpox; syphilis; thalassaemia major; tuberculosis; tularaemia;
typhus (epidemic); verotoxin-producing Escherichia coli infection; viral
haemorrhagic fevers; yellow fever
Category 4
avian influenza in humans; SARS; tuberculosis; typhoid
Category 5
AIDS; HIV
Notifiable conditions to be notified by chief executive of a hospital
acquired immunodeficiency syndrome (AIDS); acute viral hepatitis;
adverse event following immunisation; avian influenza in humans;
botulism; cancer; cholera; congenital malformation in a child under the
age of 1 year; CJD and vCJD; cystic fibrosis in a child under the age
of 1 year; diphtheria; foodborne illness in two or more related cases;
gastroenteritis among people of any age, in an institution (eg among
persons in educational or residential institutions); haemolytic uraemic
syndrome; haemophilus influenzae type b; hypothyroidism in a child
under the age of 1 year; legionnaires’ disease; leprosy; lyssavirus;
measles; meningococcal disease; paratyphoid; pertussis (whooping
cough); phenylketonuria in a child under the age of 1 year; plague;
poliomyelitis; pregnancy with a child having a congenital malformation,
cystic fibrosis, hypothyroidism, thalassaemia major or phenylketonuria;
rabies; SARS; smallpox; syphilis; tetanus; thalassaemia major in a child
under the age of 1 year; tuberculosis; typhoid; typhus (epidemic); viral
haemorrhagic fevers; yellow fever
Who must be notified?
The Director General of Health must be notified via the local Public
Health Unit, and notification should be initiated within 24 hours of
diagnosis. Notification forms and contact details are available for each
area health service at www.health.nsw.gov.au/infect/notify.html.
Information required
The notifier must complete the doctor/hospital notification form, either
by telephone or in writing. HIV/AIDS is reported on the AIDS notification
form. Laboratories must notify scheduled medical conditions and
provide information specified in the laboratory notification form, either
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and listed diseases
by telephone or in writing. HIV/AIDS is notifiable only by laboratories
carrying out confirmatory testing, direct to Communicable Diseases
Branch. When reporting category 5 conditions (HIV/AIDS) identifying
information cannot be used, unless by consent or by order of the
District Court. The director general may seek a court order to disclose
the identity of the patient when it is necessary in order to safeguard the
health of the public.
The notification policy is contained in Policy Directive PD2006_014,
Notification of Infectious Diseases under the Public Health Act 1991
www.health.nsw.gov.au/policies/pd/2006/pdf/PD2006_014.pdf.
NT Notifiable Diseases Act 1981
Who must notify?
• Medical practitioners must report to the Centre for Disease Control
if they diagnose a notifiable disease or they suspect a person has a
notifiable disease.
• Laboratories must notify the Centre for Disease Control of any
positive tests for notifiable diseases.
Notifiable diseases to be notified by medical practitioners
AIDS; acute post-streptococcal glomerulonephritis; adverse vaccine
reactions; anthrax; Australian bat lyssavirus; avian influenza; botulism;
chancroid; chicken pox; cholera; congenital rubella syndrome;
congenital syphilis; Creutzfeldt-Jakob disease; dengue virus infection;
diphtheria; donovanosis; food or water borne disease (in 2 or more
related cases); gastroenteritis involving 1 or more related cases in
an institution or food handler; gonococcal conjunctivitis; haemolytic
uraemic syndrome (HUS); haemophilus influenzae type b (invasive);
hepatitis B; hepatitis C; hepatitis not otherwise specified; hepatitis
(acute viral); HTLV 1 (adult T cell leukaemia/lymphoma, tropical spastic
paraparesis); Japanese encephalitis; Kunjin virus infection; leprosy;
lymphogranuloma venereum (LGV); lyssavirus not otherwise specified;
malaria; measles; meningococcal infection; mumps; Murray Valley
encephalitis; non-tuberculous mycobacterial disease; pertussis;
plague; poliomyelitis; rabies; rheumatic fever; rubella; SARS; smallpox;
syphilis; tetanus; thrombotic thrombocytopenic purpura (TTP);
tuberculosis; tularaemia; typhoid; typhus (all forms); varicella infection
unspecified; viral haemorrhagic fevers (Crimean-Congo fever, ebola
virus disease, Lassa fever, Marburg virus disease); yellow fever; zoster
(shingles)
Notifiable diseases to be notified by laboratories
adult T-cell leukaemia/lymphoma; amoebiasis; anthrax; arbovirus
infection; Australian bat lyssavirus; avian influenza; Barmah Forest
virus; botulism hydatid infection; brucellosis influenza shigellosis;
campylobacteriosis; chancroid; chicken pox; chlamydial conjunctivitis;
chlamydial infection; cholera; cryptosporidiosis; dengue virus infection;
diphtheria; donovanosis; gonococcal conjunctivitis; gonococcal
infection; gonococcal neonatal ophthalmia; haemophilus influenzae
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and listed diseases
non-type b (invasive); haemophilus influenzae type b (invasive);
hepatitis A; hepatitis B; hepatitis C; hepatitis D; hepatitis E; HIV;
HTLV-1; Japanese encephalitis; Kunjin virus; legionnellosis; leprosy;
leptospirosis; listeriosis; lymphogranuloma venereum (lgv); lyssavirus
not otherwise specified; malaria; measles; melioidosis; meningococcal
infection; mumps; Murray Valley encephalitis; non-tuberculous
mycobacterial disease; ornithosis (psittacosis); pertussis; plague;
pneumococcal disease; poliomyelitis; Q fever; rabies; Ross River virus
infection; rotavirus; rubella; salmonellosis (including paratyphoid);
SARS; Shiga-like toxin (verocytotoxin) producing E. coli infection;
smallpox; syphilis; tetanus; trichomoniasis; tuberculosis; tularaemia;
typhoid; typhus (all forms); varicella infection unspecified; vibrio food
poisoning; viral haemorrhagic fevers (Crimean-Congo fever, ebola virus
disease, Lassa fever, Marburg virus disease); yellow fever; yersiniosis;
zoster (shingles)
Who must be notified?
The Centre for Disease Control. Notification forms and contact details
are available for each area health service at www.nt.gov.au/health/cdc/
cdc.shtml.
Information required:
All information required by the doctor/hospital report of clinically
notifiable conditions. Identifying information should be omitted for
patients with HIV/AIDS. See www.nt.gov.au/health/docs/notification_
form_2006.pdf.
Qld Public Health Act 2005
Who must notify?
• doctors who have a clinical or preliminary diagnosis of a notifiable
condition
• a person in charge of a hospital where a doctor indicates that
a patient has a clinical or preliminary diagnosis of a notifiable
condition
• the director of a pathology laboratory, where the pathological
examination of a specimen indicates that the person from whom the
specimen was taken has or had a notifiable condition.
Notifiable conditions
AIDS; acute flaccid paralysis; acute rheumatic fever; acute viral
hepatitis; adverse event following vaccination; anthrax; arbovirus
infections (alphavirus infections, including Barmah Forest, getah,
Ross River and sindbis viruses); bunyavirus infections (including
gan gan, mapputta, termeil and trubanaman viruses), flavivirus
infections (including alfuy, Edge Hill, Japanese encephalitis, kokobera,
Kunjin, Murray Valley encephalitis, Stratford and other unspecified
flaviviruses; excluding dengue fever and yellow fever); any other
arbovirus infections (excluding dengue fever and yellow fever);
atypical mycobacterial infection; avian influenza; botulism; brucellosis;
campylobacteriosis; chancroid; chlamydia trachomatis infection
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and listed diseases
(anogenital and non-anogenital); chlamydia trachomatis infection
(lymphogranuloma venereum); cholera; ciguatera intoxication;
Creutzfeldt-Jakob disease; Cryptococcosis; Cryptosporidiosis; dengue
fever; diphtheria; donovanosis; echinococcosis (hydatid disease);
equine morbillivirus (hendra virus) infection; food-borne or waterborne
illness in 2 or more cases; food-borne or waterborne illness in food
handler; gonococcal infection; haemolytic uraemic syndrome (HUS);
haemophilus; influenza type b infection (invasive); Hansen’s disease
(leprosy); hepatitis A; hepatitis B; hepatitis C; hepatitis D; hepatitis
E; hepatitis (other); human immunodeficiency virus infection (HIV);
influenza; invasive group A streptococcal infection; lead exposure;
legionellosis; leptospirosis; listeriosis; lyssavirus (Australian bat
lyssavirus) including potential exposure; lyssavirus (rabies); lyssavirus
(unspecified); malaria; measles; melioidosis; meningococcal infection
(invasive); mumps; ornithosis (psittacosis); paratyphoid; pertussis;
plague; pneumococcal disease (invasive); poliomyelitis; Q fever;
rotavirus infection; rubella, including congenital rubella; salmonellosis;
SARS; shiga toxin and vero toxin producing escherichia coli infection
(SLTEC/VTEC); shigellosis; smallpox; syphilis, including congenital
syphilis; tetanus; tuberculosis; tularaemia; typhoid; varicella-zoster
virus infection (chickenpox, shingles or unspecified); viral haemorrhagic
fevers (Crimean-Congo, Ebola, Lassa fever and Marburg viruses);
yellow fever; yersiniosis
Who must be notified?
The chief executive of Qld Health, via local Population Health
Centres. Contact details can be found at www.health.qld.gov.au/phs/
Documents/cdu/notif_conditions_rpt.pdf.
For HIV/AIDS reports must be sent to AIDS Medical Unit, PO Box
15239, Brisbane City East Qld 4002.
• ph: (07) 3837 5622
• fax: (07) 3837 5672
For tuberculosis, reports must be sent to Queensland Tuberculosis
Control Centre, Locked Bag 66 Coorparoo DC Qld 4151.
• ph: (07) 3896 3963
• fax: (07) 3896 3984
Information required
The notification forms can be found at www.health.qld.gov.au/phs/
Documents/cdu/notif_conditions_rpt.pdf. The notifier may choose to
give anonymised information, but the chief executive has the power to
ask for further information, including the full name of the patient and
other identifying information.
SA Public & Environmental Health Act 1987
Who must notify?
• medical practitioners who suspect that a patient is suffering from or
has died from a notifiable disease
• persons in charge of pathology laboratories.
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and listed diseases
Notifiable diseases
AIDS; anthrax; arbovirus infection; avian influenza infection in humans;
brucellosis; campylobacter infection; chlamydia infection; cholera;
Creutzfeldt-Jakob disease; cryptosporidiosis; diphtheria; donovanosis;
food poisoning; gonococcal infection; haemolytic-uraemic syndrome
(HUS); haemophilus influenzae infection; HIV infection; hydatid disease;
infection caused by escherichia coli capable of producing Shiga toxin;
invasive pneumococcal disease; legionellosis; leptospirosis; listeriosis;
lyssavirus infection; malaria; measles; meningococcal infection;
mumps; mycobacterial infection; pandemic influenza; pertussis;
plague; poliomyelitis; Q fever; rabies; rubella; salmonella infection;
SARS; shigella infection; smallpox; syphilis; tetanus; tularaemia;
variant Creutzfeldt-Jakob disease; varicella-zoster infection; viral
haemorrhagic fever; viral hepatitis; yellow fever; yersinia infection
Who must be notified?
The Communicable Disease Control Branch, Reply Paid 6, PO Box 6
Rundle Mall Adelaide SA 5000
• ph: (08) 8226 7177
• fax: (08) 8226 7187
Information required
The notification forms can be found at www.dh.sa.gov.au/pehs/PDF-
files/notifiable-disease-form.pdf. For HIV, AIDS, AIDS-related death,
hepatitis B or C, and sexually transmitted infections a separate form is
forwarded automatically to the doctor upon a positive laboratory result.
Tas Public Health Act 1997; HIV/AIDS Preventative Measures Act 1993
Who must notify?
• registered medical practitioners who believe on reasonable grounds
that a patient has a notifiable disease
• person superintending, or in charge of a hospital or laboratory
Notifiable conditions
anthrax; arbovirus (Ross River virus, Barmah Forest virus, dengue);
arbovirus (Japanese encephalitis, Murray Valley encephalitis, Kunjin
virus, other); botulism; brucellosis; campylobacteriosis; chancroid;
chlamydia trachomatis; cholera; Creutzfeldt-Jakob disease (all
variants); cryptosporidiosis; diphtheria; donovanosis; gastroenteritis
in an institution (residential, educational or child care facility); giardia
infection; gonococcal infection; haemolytic uraemic syndrome (HUS);
haemophilus influenzae type b infection (invasive only); hepatitis A;
hepatitis B (acute case); hepatitis B (carrier); hepatitis C; hepatitis
D; hepatitis E; hepatitis other (details to be specified ); HIV infection;
diagnosis of an AIDS-defining illness; hydatid infection; influenza
infection; influenza infection (avian influenza); lead (demonstration
of blood level in excess of 15 µg/dL/ (0.72 µmol/L) in any person not
known to be occupationally exposed to lead); legionellosis; leprosy;
leptospirosis; listeriosis; lymphogranuloma venereum; lyssavirus
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and listed diseases
(including Australian bat lyssavirus and others); malaria; measles;
meningococcal infection; mumps; ornithosis (psittacosis);
paratyphoidosis; pertussis; plague; pneumococcal infection (invasive
disease); poliomyelitis; Q fever; rabies; rickettsial infection (including
Flinders Island spotted fever and others); rubella (including congenital
rubella); salmonellosis; SARS; Shiga toxin producing E.coli (both VTEC
and STEC); shigellosis; smallpox; suspected cases of food or water
borne illness; syphilis (including congenital syphilis); taeniasis; tetanus;
tuberculosis; tularaemia; typhoid; typhus; vancomycin resistant
enterococci (VRE); varicella; vibrio infection; viral haemorrhagic fever;
yellow fever; yersinia infection
Who must be notified?
The Director of Public Health, Public & Environmental Health Service,
Department of Health & Human Services, GPO Box 125 Hobart Tas
7001
• freecall: 1800 671 738
• ph: (03) 6233 3185
• email: [email protected]
• website: www.dhhs.tas.gov.au
Information required
The patient details required for notification are outlined in the
Guidelines for Notification of Notifiable Diseases, Human Pathogenic
Organisms and Contaminants 2006 (www.dhhs.tas.gov.au/agency/pro/
publichealthlegislation/documents/notifiable_diseases_guidelines_24_
jan%20_06.pdf). For sexual transmissible diseases notification must be
identified by the first 2 letters of the given name and the first 2 letters
of the surname of the patient. The full name of the patient must not be
provided unless it is requested by the director. Only the postcode and
suburb of the area in which the patient lives must be provided. The full
address of the patient must not be provided unless it is requested by
the director.
Vic Health (Infectious Diseases) Regulations 2001
Who must notify?
• medical practitioners who become aware that a patient shows
evidence of, or has died with, or is a carrier of a notifiable disease
• the person in charge of a pathology service, where a test has been
performed on a specimen which indicates the probable presence of
a human pathogenic organism associated with a notifiable disease
Group A
anthrax; arbovirus infections (Japanese encephalitis virus, Australian
arbo-encephalitis, Murray Valley encephalitis virus); botulism; cholera;
diphtheria; food-borne and water-borne illness (two or more related
cases); haemolytic uraemic syndrome (HUS); legionellosis; measles;
haemophilus influenzae, type B infection (meningitis, epiglottitis,
other invasive infections); meningococcal infection (meningitis or
meningococcaemias); poliomyelitis; plague; rabies; severe acute
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and listed diseases
respiratory syndrome (SARS); smallpox; tularaemia; typhoid and
paratyphoid fevers; viral haemorrhagic fevers; yellow fever
Group B
arbovirus infections (Ross River virus, Barmah Forest virus,
dengue virus, Kunjin virus, other arbovirus infections); brucellosis;
campylobacter infection; Creutzfeldt-Jakob disease (CJD);
cryptosporidiosis; giardiasis; hepatitis A; hepatitis B; hepatitis
C; hepatitis D; hepatitis E; hepatitis viral (not further specified);
influenza (laboratory confirmed); leprosy; leptospirosis; listeriosis;
lyssavirus (Australian bat lyssavirus, other (specify)); malaria;
mumps; mycobacterium ulcerans; pneumococcal infection (invasive);
psittacosis (ornithosis); pertussis; Q fever; rubella (including congenital
rubella); salmonellosis; shigellosis; tetanus; tuberculosis; variant
Creutzfeldt-Jakob disease (vCJD); verotoxin producing Escherichia coli
(VTEC)
Group C
chlamydia trachomatis infection; donovanosis; gonococcal infection;
syphilis/congenital syphilis
Group D
AIDS,HIV
Who must be notified?
Communicable Disease Control, Victorian Government Department of
Human Services, Reply Paid 65937, Melbourne Vic 8060
• ph: 1300 651 160
• urgent priority out-of-hours: 1300 790 733
Group A diseases require immediate notification by telephone or fax
on initial diagnosis (presumptive or confirmed) with written notification
to follow within 5 days. Groups B and C diseases require written
notification only within 5 days of diagnosis. Group D diseases require
written notification within 5 days of confirmation of diagnosis.
Information required
The forms are available at www.health.vic.gov.au/ideas/notifying/
howto.htm.
Full identifying information is given for groups A and B. Groups C
and D disease notification require the first two letters of the patient’s
family name and the first two letters of the given name.
WA Health Act 1911
Who must notify?
• medical practitioners or nurse practitioners who know or suspect
that a patient has a notifiable communicable disease
• responsible pathologists of a pathology laboratory if analysis
indicates a patient has or had an infectious disease.
Notifiable communicable diseases
amoebiasis; amoebic meningitis; anthrax; arboviral encephalitis
(includes Murray Valley, Kunjin and Japanese encephalitis viruses);
Barmah Forest virus infection; botulism (food-borne); brucellosis;
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= TABLE 14.2.1 Notifiable diseases: legislation, requirements

and listed diseases
campylobacter infection; chancroid; chlamydia (genital infection);
cholera; Creutzfeldt Jakob disease; cryptosporidiosis; dengue fever;
diphtheria; donovanosis (granuloma inguinale); giardiasis; gonorrhoea;
haemolytic uraemic syndrome; haemophilus influenzae type b
infection (invasive); hepatitis A; hepatitis B; hepatitis C; hepatitis D;
hepatitis E; HIV/AIDS; hydatid disease; influenza; legionella infection;
leprosy; leptospirosis; listeriosis; lyssavirus infection (Australian bat
lyssavirus, other); malaria; measles; melioidosis; meningococcal
infection; methicillin resistant staphylococcus aureus (MRSA) infection;
mumps; paratyphoid fever; pertussis; plague; pneumococcal infection
(invasive); poliomyelitis; psittacosis (ornithosis); Q fever; rabies;
relapsing fever; Ross River virus infection; rubella (congenital or
non-congenital); salmonella infection; scarlet fever; schistosomiasis
(bilharzia); severe acute respiratory syndrome (SARS); Shiga toxin
(verotoxin) producing E coli (STEC/VTEC) infection; shigellosis
(bacillary dysentery); smallpox; syphilis (primary, secondary, latent,
tertiary, congenital); tetanus; tuberculosis; tularaemia; typhoid fever;
typhus (rickettsial infection); vibrio parahaemolyticus infection; viral
haemorrhagic fevers (includes Crimean-Congo, Ebola, Lassa, Marburg
viruses); yellow fever; yersinia infection
Who must be notified?
For metropolitan Perth:
Communicable Disease Control Directorate, PO Box 8172 Perth
Business Centre WA 6849
• ph: (08) 9388 4852
• fax: (08) 9388 4848
• after hours emergency: (08) 9328 0553
Outside Perth:
contact local Population Health Unit. See www.health.wa.gov.au/
notifications/contact/PHU.cfm.
Information required
Notification forms are available at www.health.wa.gov.au/notifications/
forms/index.cfm. For notification of HIV infection or AIDS the patient’s
name, address and telephone number cannot be disclosed without
consent, unless the practitioner has reasonable grounds to believe that
the patient may engage in behaviour that is likely to put other persons
at risk of infection. Notification of HIV/AIDS should occur within 2 days
of confirmation of diagnosis, and sooner if urgent contact tracing is
necessary. Other diseases may require immediate notification or, if less
urgent, within 24 hours of confirmation of diagnosis.

[14.2.2] Are there diseases that need to be notified to special

registers? Yes. There are cancer registers in all jurisdictions, and
some also have separate registries for cervical cytology, breast cancer
screening and pap smears: see table 14.2.2.

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TABLE 14.2.2 Cancer registries

ACT Public Health Regulation 2000
• ACT Cancer Registry, Population Health Research Centre, ACT
Health, Level 1, Building 5, The Canberra Hospital, PO Box 11
Woden ACT 2606
• www.aihw.gov.au/cancer/aacr/act.cfm
• ACT Cervical Cytology Register: www.health.act.gov.au/paptest
NSW Public Health Act 1991
• NSW Central Cancer Registry, Cancer Institute NSW, PO Box 41,
Alexandria NSW 1435
• ph: (02) 8374 5747
• fax: (02) 8374 5744
• www.cancerinstitute.org.au
• NSW Pap Test Register: www.cancerinstitute.org.au
NT Cancer Registration Act; Public Health (Cervical Cytology Register)
Regulations
• NT Cancer Registry, Health Gains Planning Unit, Department of
Health & Community Services, PO Box 40596, Casuarina NT 0811
• ph: (08) 8999 2977
• fax: (08) 8999 2618
• NT Pap Smear Register: www.nt.gov.au/health/comm_health/
womens_health/pap_register.shtml
Qld Public Health Act 2005
• Qld Cancer Registry, Queensland Cancer Fund, Locked Bag 1450,
Spring Hill Post Office Qld 4004
• ph: (07) 3258 2331
• fax: (07) 3258 2345
• www.qldcancer.com.au
• Qld Pap Smear Register: www.health.qld.gov.au/PapSmearRegistry/
SA South Australian Health Commission (Cancer) Regulations 1991;
Public & Environmental Health (Cervical Cancer Screening) Regulations
1993
• SA Cancer Registry, Epidemiology Branch, Department of Health,
PO Box 6, Rundle Mall SA 5000
• ph: (08) 8226 6158
• fax: (08) 8226 6672
• www.health.sa.gov.au/pehs/branches/branch-cancer-registry
• SA Cervix Screening Program: www.dh.sa.gov.au/pehs/cervix-
screening/pap-smear-reminders.htm
Tas Public Health Act 1997
• Tasmanian Cancer Registry, Menzies Research Institute, Private Bag
23, Hobart Tas 7001
• ph: (03) 6226 7706
• fax: (03) 6226 7704
• www.menzies.utas.edu.au
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• Tasmanian Cervical Cytology Register: www.dhhs.tas.gov.au/
services/view.php?id=632
Vic Cancer Act 1958; Cancer (Breastscreen Victoria Registry)
Regulations 2003; Cancer (Reporting) Regulations 2002
• Victorian Cancer Registry, The Cancer Council Victoria, 1
Rathdowne St, Carlton South Vic 3053
• ph: (03) 9635 5000
• fax: (03) 9635 5210
• www.cancervic.org.au
Victorian Cervical Cytology Register - www.vccr.org
WA Health Act 1911; Health (Notification of Cancer) Regulations 1981;
Health (Cervical Cytology Register) Regulations 1991
• WA Cancer Registry, Information Collection and Management,
Department of Health (WA), 1st floor C Block, 189 Royal St, East
Perth WA 6004
• ph: (08) 9222 4022/4249
• fax: (08) 9222 4236
• www.health.wa.gov.au/wacr/
• WA Cervical Cytology Registry: www.kemh.health.wa.gov.au/
services/cervical_cancer/index.htm

14.3 Providing information to patients

[14.3.1] What information should be given to patients with
notifiable conditions? Health professionals treating patients with
infectious diseases have the same duties to give them material
information as they do towards other patients: see chapter 6. Some
jurisdictions also have legislative requirements for providing
information to patients with notifiable diseases: see table 14.3.1.
Importantly, health professionals need to properly advise their
patients about consent to the sharing of results, if they attend a joint
consultation for testing: see [14.5.3].

TABLE 14.3.1 Providing information: legislation and

requirements
ACT Public Health Act 1997
Under s 102(1):
If a doctor or authorised nurse practitioner has reasonable grounds to
believe that a patient has, or may have, a notifiable condition, the doctor or
nurse practitioner must—
(a) give the patient information about—
(i) the transmission of the condition and how to prevent the transmission
of the condition to others; and
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= TABLE 14.3.1 Providing information: legislation and

requirements
(ii) anything determined in writing by the chief health officer; and
(b) advise the patient of the patient’s rights under section 99(c); and
(c) if the patient agrees, make reasonable arrangements for the patient to
receive counselling in accordance with any applicable code of practice.
These requirements do not apply if the doctor or authorised nurse
practitioner has reasonable grounds to believe that the patient has
already been given this information (s 102(3)).
Failure to comply may lead to disciplinary action and is a ground for
a complaint to the ACT Human Rights Commission (s 102(4), (5)).
NSW Public Health Act 1991; Public Health (General) Regulation 2002
Section 12 of the Act and r 12 of the Regulation requires a medical
practitioner to provide a patient who has a sexually transmissible
medical condition with information on measures to be taken, and
activities to be avoided, in order to minimise the danger of passing the
medical condition to another person. This must be done as soon as
practicable.
Medical practitioners who fail to comply are guilty of an offence
unless the court is satisfied that the medical practitioner knew that
the information to which the offence relates had been supplied to the
patient by another medical practitioner.
NT Notifiable Diseases Act 1981
Section 7 imposes a duty on people who believe on reasonable
grounds that they may have a notifiable disease to consult a medical
practitioner at the first reasonable opportunity. Once diagnosed the
medical practitioner must advise an adult patient, or the parents of
a patient under 16 years, of the nature of the notifiable disease, the
measures to be taken to prevent its spread, and the treatment, if any,
required. Medical practitioners may also choose to advise parents of
children aged 16–18.
Tas Public Health Act 1997; HIV/AIDS Preventative Measures Act 1993
Under s 50(1) of the Public Health Act:
A registered medical practitioner who believes on reasonable grounds that a
person whom he or she is attending has a notifiable disease must—
(a) give the person any information about—
(i) the transmission and prevention of that disease; and
(ii) any other matter the Director [of Health] determines; and
(b) arrange for the person to receive counselling in accordance with any
relevant guidelines; and
(c) request the person to give relevant information in accordance with the
relevant guidelines.
Under s 14 of the HIV/AIDS Preventative Measures Act:
Before an HIV test is undertaken by a person … a medical practitioner or
approved health care worker authorized by the medical practitioner is to
counsel that person and any other person the medical practitioner considers
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requirements
should be counselled in respect of the medical and social consequences of
being tested.
Under s 15(3), if the results are positive the medical practitioner or
approved healthcare worker must:
(a) counsel the tested person in person; and
(b) require the tested person to provide relevant information in accordance
with the Guidelines issued by the Secretary.
If the result is negative, the medical practitioner or approved healthcare
worker must counsel the tested person in person in relation to that
person’s continued protection from acquiring HIV (s 15(2)).
Vic Health Act 1958
Duties to counsel are imposed by Part VI. Testing for infectious disease
may occur when the patient consents after being informed about the
risk of transmission of the disease in the particular circumstances and
about the medical and social consequences of being infected with the
disease. If an order has been made to test an incapable person, the
person must be counselled as soon as is practicable after regaining
capacity.
If the person tested died before the testing or does not regain
capacity the substitute decision-maker (such as a parent or guardian)
must be counselled by a registered medical practitioner.
Section 127(1) provides that registered medical practitioners
must not carry out testing for HIV unless the patient has been given
information about the medical and social consequences of being
tested and of the possible results of the test. Under s 127(2), if the
results of the test are positive:
(a) the person must not be advised of the results of the test except by
and in the presence of a registered medical practitioner or person of a
prescribed class; and
(b) the registered medical practitioner or person of a prescribed class
must, at the same time as he or she advises that person of the results
of the test, give the person information about the medical and social
consequences of being infected with the virus and guidelines on ways to
prevent the transmission of the virus to others.

14.4 Powers to control testing and treatment

[14.4.1] Are there situations where testing and treatment are
compulsory? Yes. Each jurisdiction gives public health authorities
the power to compulsorily test and treat patients. Orders can also
be made to limit the movement of patients, or have them detained.
Such orders are of limited duration in some jurisdictions, while others
provide for appeal mechanisms.
The most extreme form of state-based control comes into operation

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under states of emergency. Each state and territory government can

declare a state of emergency if there is an outbreak of an infectious
disease. The powers given to officials under these circumstances
are very wide, including such powers as the power to destroy or
commandeer property, limit people’s movements and bring people
into areas and detain them: see table 14.4.1.

TABLE 14.4.1 Coercive orders: legislation and orders that can

be made
ACT Public Health Act 1997
Under s 113(1):
Where the chief health officer has reasonable grounds for believing that it is
necessary to prevent or alleviate a significant public health hazard, he or she
may issue any or all of the following directions to a person for that purpose:
(a) a direction requiring a person to refrain from behaviours or activities that
significantly contribute to a hazard;
(b) a direction requiring a person to cease performing work of a particular
kind or at a particular place, when such work significantly contributes to
the hazard;
(c) a direction requiring a person who has a transmissible notifiable condition
to undergo a medical examination;
(d) a direction requiring a person who has a transmissible notifiable condition,
or a contact of such a person, to undergo specified counselling;
(e) a direction requiring a person who has a transmissible notifiable
condition, or a contact of such a person, to be confined to a particular
place for a specified period, being the least restrictive confinement
appropriate to the patient’s medical condition [if a person has been
confined the chief health officer must review the public health direction
within 48 hours after the patient was first confined];
(f) a direction requiring a person not to enter, or not to remain in, a particular
place for a specified period;
(g) a direction requiring a person to cease using a particular piece of equipment;
(h) a direction requiring a person to clean and decontaminate a particular
place;
(i) a direction requiring a person to undertake, or to refrain from undertaking,
any other action, where the chief health officer has reasonable grounds
for believing the requirement to be necessary for the purposes of
preventing or alleviating the hazard;
(j) a direction requiring a person to take whatever action is necessary
to ensure that another person or persons for whose care, support
or education the person is responsible complies with a specified
requirement or requirements referred to elsewhere in this subsection.
If the person does not comply with the order the chief health officer
may apply to the Magistrates’ Court for a compliance order. Appeals
can be made to the Supreme Court. Under s 117 an order can be
revoked upon application to the officer who made the order, or to the
Magistrates’ Court.
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be made
NSW Public Health Act 1991
Section 22 gives the Director-General of Health the power to require a
patient to undergo a medical examination if the director-general believes
on reasonable grounds that the person is suffering from a category 4 or
category 5 medical condition. Failure to comply is an offence.
Section 23(1) allows an authorised medical practitioner to make
a written public health order in respect of a person, if satisfied on
reasonable grounds that the person:
(a) is suffering from a Category 4 or Category 5 medical condition, and
(b) is behaving in a way that is endangering, or is likely to endanger, the health
of the public because the person is suffering from that medical condition.
Under s 23(3), the public health order may order the person to:
(a) refrain from specified conduct,
(b) undergo specified treatment,
(c) undergo counselling by a specified person or by one or more persons
belonging to a specified class of persons,
(d) submit to the supervision of a specified person or one or more persons
belonging to a specified class of persons,
(e) undergo specified treatment and be detained at a specified place while
undergoing the treatment,
(f) if the order is based on a Category 5 medical condition—be detained at a
specified place while the order is in force.
Orders cannot be in force longer than 28 days. Applications may be
made to the Administrative Decisions Tribunal for confirmation of a
public health order based on a category 5 medical condition. Any
continuation of a public health order for a category 4 or category 5
condition must be made by the tribunal.
NT Notifiable Diseases Act 1981
Section 11 empowers a medical officer to direct an infected person or
one suspected of carrying a notifiable disease to carry out measures
which the medical officer believes necessary for the treatment of, or to
prevent the spread of the disease. Under s 13(2) the chief health officer
may order that:
(a) an infected person or suspect person be … detained …
(b) premises in which an infected person or suspect person has resided,
worked, attended or has otherwise occupied, to be closed for a specified
period or disinfected, or both;
(c) bedding, clothing or other articles which have been, or which are
believed to have been, exposed to contamination by an infected person
or to possible contamination by a suspect person be destroyed or
disinfected; or
(d) a supply of water for human consumption or use which is or is suspected
of being contaminated by a notifiable disease be treated to render it fit for
human consumption or use.
Appeals can be made against such directions to the Local Court.
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be made
Qld Public Health Act 2005
Section 113 gives the chief executive the power to make orders when
he or she:
(a) reasonably suspects that a person who has presented to a public sector
health service has, or may have, a controlled notifiable condition; and
(b) reasonably suspects the person’s condition, or the person’s condition
and likely behaviour, constitutes an immediate risk to public health; and
(c) is satisfied the person has been counselled [if practicable (s 113(2))], or
reasonable attempts have been made to counsel the person, about the
condition and its possible effect on the person’s health and on public
health.
Controlled notifiable conditions include AIDS, HIV infection, avian
influenza, cholera, hepatitis C, influenza, lyssavirus (rabies),
paratyphoid, plague, SARS, smallpox, syphilis, tuberculosis, typhoid,
viral haemorrhagic fevers (Crimean-Congo, Ebola, Lassa fever and
Marburg viruses) and yellow fever. In these circumstances the chief
executive has the power to order the detention of the person at a
public sector health service (s 113(3)).
Under s 116(1) the chief executive may apply to a magistrate for:
(a) an initial examination order;
(b) a behavioural order; or
(c) a detention order
in relation to a person with a controlled notifiable condition.
These orders can generally be made when the magistrate reasonably
suspects the person may have a controlled notifiable condition, and
the person’s condition and behaviour constitute an immediate risk to
public health (s 118). A detention order cannot be longer than 28 days.
Sections 314–332 deal with public health emergency provisions.
SA Public & Environmental Health Act 1987; Public & Environmental
Health (Notifiable Diseases) Regulations 2004
Sections 31 to 33 empower the commission to order a person to
present for an examination when the commission has reasonable
grounds to suspect that a person is or may be suffering from a
controlled notifiable disease. Controlled notifable diseases include
AIDS, avian influenza infection in humans, cholera, diphtheria,
haemophilus influenzae infection, HIV infection, lyssavirus infection,
measles, meningococcal infection, mycobacterial infection, pandemic
influenza, plague, poliomyelitis, rabies, salmonella infection, SARS,
shigella infection, smallpox, viral haemorrhagic fever, viral hepatitis and
yellow fever.
If a warrant is issued for the arrest of the person that person
cannot be detained for a period exceeding 48 hours for the purpose of
examination.
The commission can also give (s 33(2)):
(a) a direction that the person reside at a specified place;
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be made
(b) a direction that the person place himself or herself under the supervision
of the Department or a medical practitioner nominated by the
Commission and obey the reasonable directions of that person;
(c) a direction that the person submit himself or herself to examination by a
medical practitioner at such intervals as the Commission may require;
(d) a direction that the person refrain from performing specified work or any
work other than specified work;
(e) such other directions as to the person’s conduct or supervision that the
Commission considers should apply in order to prevent the spread of
infection.
Section 32 gives the commission the power to detain people when they
have a controlled notifiable disease and it is in the interests of public
health that the person should be quarantined.
An application can be made by the commission to a magistrate
for the issue of a warrant for detention. The initial period of detention
cannot be longer than 72 hours but extension may be granted by the
magistrate as long as the total period of detention is not greater than 6
months. If a longer period is required an application must be made to
the Supreme Court.
Appeals from these orders can be made to a magistrate and then
the Supreme Court.
Tas Public Health Act 1997; HIV/AIDS Preventative Measures Act 1993
Section 41 of the Public Health Act gives the Director of Public Health
the power to require a person to undergo a medical examination if
the director is aware or suspects on reasonable grounds that the
person has a notifiable disease. The medical practitioner conducting
the examination must provide the director with a written report on the
results as soon as practicable.
Under s 42(1) the director may require such a person to comply with
the following directions:
(a) that the person be isolated in any place the Director determines;
(b) that the person be placed in quarantine in any place the Director determines;
(c) that the person be placed under the supervision of a specified person;
(d) that the person submit to further medical examination, medical testing,
medical treatment or counselling;
(e) that the person disclose to a specified person the name and address of
any other person with whom contact by that person may result or may
have resulted in the transmission of the disease;
(f) that the person refrain from performing any specified work;
(g) that the person do anything or refrain from doing anything the Director
determines.
Periods of detention cannot be longer than 48 hours (if the purpose
is a medical examination) or 24 hours, unless a magistrate orders
otherwise. A magistrate can order that a person be detained or
quarantined for any period not exceeding 6 months. Application for a
longer period must be made to the Supreme Court.
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be made
Under the HIV/AIDS Preventative Measures Act, s 10(1) & (2) allows
the secretary to require a person to undergo an HIV test:
• when the person has been charged with a sexual crime; and
• where it is necessary to determine the medical treatment of another
person who may be at risk of becoming infected with HIV and whose
condition is caused by the person required to undergo the HIV test.
Under s 10(3):
The Secretary must require a person to undergo an HIV test if the Secretary
has reasonable grounds to believe that the person—
(a) is infected with HIV; and
(b behaves in such a way as to place other persons at risk of becoming
infected with HIV; and
(c) is likely to continue to behave in such a way.
If the person refuses the direction of the secretary a magistrate may
order that person to undergo the HIV test (s 11(1)). In making the order
a magistrate must consider the following matters (s 11(3)):
(a) whether other persons are or have been exposed to the possibility of
transmission of HIV;
(b) the right to information of a person at risk of infection;
(c) the availability of a proven treatment in relation to HIV.
Under s 13(4), the magistrate must not make the order unless satisfied
on the balance of probabilities that it is in the interests of public health
to do so.
Vic Health Act 1958
Section 121 empowers the secretary to order testing, counselling,
control over movement and confinement when:
(1) …
(a) a person has an infectious disease or has been exposed to an
infectious disease in circumstances where a person is reasonably
likely to contract the disease; and
(b) if infected with that infectious disease, the person is likely to transmit
that disease; and
(c) there is a serious risk to public health.
Interim orders for examination cannot exceed 72 hours, although the
order may be renewed for a further 72 hour period. Isolation orders
must be reviewed every 28 days and may be renewed for a further
period not exceeding 28 days.
Orders lapse if the person is not infected with the infectious disease.
Orders can be appealed to the Secretary and then to the Supreme
Court.
WA Health Act 1911
Section 251(5) allows the Executive Director of Public Health to order
any person with a dangerous infectious disease:
(a) to submit himself to medical examination by such medical officer at such
time and at such place as is specified in the order; and
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(b) to … permit the medical practitioner to take … samples and specimens.
Orders under s 263 can also be given by medical officers to control the
movement of people and to isolate and quarantine them, if it is in the
interests of public health to do so. The order must be made where the
person is without proper accommodation, or is living in a house in which
the person cannot be effectually isolated to prevent the spread of infection.
Section 273 gives power to the executive director to control the
movement and isolation of people with leprosy. Section 307 provides
for compulsory examination and treatment of venereal diseases.
A person subject to detention under this section may apply to the
Supreme Court or a Magistrates’ Court for an examination to check for
venereal disease and to appeal the order.
Section 293 provides for the compulsory X-ray examination for
suspected tuberculosis.

14.5 Confidentiality and infectious disease

[14.5.1] Are there circumstances when I can breach the privacy
and confidentiality obligations owed to patients with infectious
disease? The laws concerning confidentiality and privacy are dis-
cussed in chapter 16.
It is a general defence to breaches of privacy that disclosure is
necessary to lessen or avoid a serious and imminent threat to life or
health, or public safety or health: see [16.4.9]. This defence could
apply to a situation where the identity of a patient was disclosed to
a third party at risk of infection.
In New South Wales, identity can be disclosed with a court order
when it is necessary to safeguard the health of the public (Public
Health Act 1991 s 18).
Section 20 of the Tasmanian HIV/AIDS Preventative Measures
Act 1993 allows a medical practitioner, after consultation with an
approved specialist medical practitioner, to inform any sexual con-
tact of a patient about that patient’s HIV status, when, after being
given a reasonable opportunity, the patient:
• fails to take all reasonable measures and precautions, or
• fails to tell any sexual contact or person with whom they share
needles about their infection in advance, or
• knowingly or recklessly places another person at risk of
becoming infected with HIV.
Identity can be required to be disclosed as part of the notification
process: see [14.2.1].

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[14.5.2] Must a patient with an infectious disease provide

information about possible contacts? Contact tracing can be used
to map out infection history, and is particularly useful for rapid-onset
outbreaks. Some jurisdictions have explicitly provided for contact
tracing as part of their legislative regimes: see table 14.5.2.

TABLE 14.5.2 Contact tracing: legislation and requirements

ACT Public Health Act 1997
Under ss 106–109, authorised officers may request details of contacts,
including names and addresses, from people the officer has reasonable
grounds for believing have a notifiable condition. The officer must
explain the reasons for the request, and must have the person’s
permission to approach possible contacts. If the person refuses to give
permission, the chief health officer can choose to inform contacts after
considering matters such as the degree of risk of exposure and the risk
of anxiety caused to the people involved.
NT Notifiable Diseases Act 1981
Under s 9, an infected person must inform a medical practitioner of
the names and addresses of all the people from whom the person
may have contracted the notifiable disease. A suspected person must
provide the names and addresses of all people with whom the person
has been in contact during a period of time specified by the medical
practitioner.
Qld Public Health Act 2005
Ch 3, Pt 3 deals with contact tracing. The office of the contact tracing
officer is established in s 89. The officer has the power to require
information regarding the identity, business information, whereabouts
and telephone numbers of people who may have transmitted the
infection to the person with the condition, or people who may have
been exposed to the infection by that person. The officer can also
require this information via a contact information requirement notice.
Failure to comply with this notice is a criminal offence.

[14.5.3] Can results be shared if people attend a joint consultation?

Results can be shared with consent. If patients attend a joint consul-
tation seeking testing for infectious diseases they should be asked
whether they consent to the results being shared.
Failure to advise patients of the need for consent in such situa-
tions may constitute negligence.
Case example
In Harvey v PD [2004] NSWCA 97, two doctors were found
negligent for failing to properly address the issue of disclosing
results when a couple presented jointly to check for sexually

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transmitted infections (STIs). The couple were considering

engaging in a long-term relationship, but the woman, PD, was
concerned about STIs, particularly HIV, as the man, FH, had a
Ghanese background. The doctor, Dr Harvey, failed to inform
them that results could only be shared with their consent and
that without their consent, test results would be confidential. Dr
Harvey was told by PD and FH why they wanted the testing.
The test results showed that FH had HIV and hepatitis B. He
was advised by Dr Harvey to attend a specialist clinic, but was
not asked whether he was going to tell PD about the test results.
Later, FH was seen by another doctor, Dr Chen, at Dr
Harvey’s clinic. Dr Chen told FH he had AIDS (he did not),
that it ‘kills’ and that treatment was expensive. He did not
ask FH whether he was going to tell PD. FH failed to keep his
appointments at the specialist clinic. The doctors were informed
of this, but no-one contacted either FH or PD.
PD attended the clinic and asked for FH’s results. She was
told that they were confidential. FH fabricated results to suggest
he had no infections. The couple later married, and PD became
pregnant. She contracted HIV from FH. FH later fled the country.
The Court of Appeal found that the doctors were negligent
in their advice to the couple. Consent should have been sought
or, alternatively, a second joint consultation should have been
arranged where both patients could have been asked to consent
to the sharing of results.

14.6 Criminal sanctions

[14.6.1] Is it a crime to infect another person with a communicable
disease? There are a number of established offences that could be
charged against people who intentionally or recklessly infect others,
such as criminal assault, inflicting grievous bodily harm and homicide.
Specific crimes have also been created in all jurisdictions to deal with
situations in which a person either knowingly or recklessly infects
another person: see table 14.6.1.

TABLE 14.6.1 Communicable disease: legislation and

requirements
ACT Public Health Regulation 2000
Under r 21 a person who knows or suspects that they have a
transmissible condition must take reasonable precautions against
transmitting it.
NSW Public Health Act 1991
Under s 12 it is an offence for a person with a category 2, category 3,
=
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= TABLE 14.6.1 Communicable disease: legislation and

requirements
category 4 or category 5 medical condition to be in a public place and
fail to take reasonable precautions against spreading the condition.
Under s 13 it is an offence for a person with a sexually transmissible
medical condition to have sexual intercourse without informing the
other person of the risk of contracting the condition and the other
person voluntarily agreeing to accept the risk.
NT Notifiable Diseases Act 1981
Under s 7 a person who has reasonable grounds to believe they may
be an infected person must consult a medical practitioner at the first
reasonable opportunity.
Qld Public Health Act 2005
Under s 143 it is an offence for a person to recklessly spread a
controlled notifiable condition, or recklessly transmit such a condition
to someone else (unless the other person knew about the condition
and voluntarily accepted the risk).
SA Public & Environmental Health Act 1987
Under s 37 a person infected with disease must take all reasonable
measures to prevent its transmission to others.
Tas Public Health Act 1997; HIV/AIDS Preventative Measures Act 1993
Under s 51 of the Public Health Act a person who is aware of having a
notifiable disease must take all reasonable measures and precautions
to prevent its transmission, and must not knowingly or recklessly place
another person at risk of contracting the disease. It is a defence if the
other person knew of, and voluntarily accepted, the risk of getting the
disease.
Under s 20 of the HIV/AIDS Preventative Measures Act it is a crime
for a person who is infected with HIV or is carrying HIV antibodies
to knowingly or recklessly place another person at risk of becoming
infected with HIV, unless the other person knew of and voluntarily
accepted the risk of infection.
Vic Health Act 1958
Under s 120 a person must not knowingly or recklessly infect another
person with an infectious disease. It is a defence if the other person
knew of and voluntarily accepted the risk.
WA Health Act 1911
Under s 264 it is an offence for a person with any infectious disease to
fail to take proper precautions in public places against spreading the
infection. The person must also notify the owner, conductor, or driver of
a public vehicle in which they are travelling. Anyone who fails to notify
may have to pay for the disinfection of the conveyance.
Under s 310 it is an offence to knowingly infect another person with
a venereal disease.

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Case examples
There have been a number of convictions for intentionally and
recklessly infecting others with HIV. In 2005, Stanislas Kanengele-
Yondjo was sentenced to a term of imprisonment by the New
South Wales District Court for infecting two women with HIV.
Kanengele-Yondjo had had unprotected sex with both women
after convincing them that he had been regularly tested and
‘would never hurt them’.
Kanengele-Yondjo was a Congolese refugee and father
of five who moved to Sydney in 1993. He was convicted of
maliciously inflicting grievous bodily harm. Andrew DCJ sentenced
Kanengele-Yondjo to 12 years’ imprisonment with a nine-year
non-parole period, which he said reflected the high level of
deception used by Kanengele-Yondjo in gaining the women’s
consent to sexual intercourse. It was also said that Kanengele-
Yondjo had received counselling and education about his HIV
status, and was fully informed of the need to engage in safe sex
with informed partners.
Another case concerned Mark Kenneth Reid, a 37-year-old
gay man from Queensland. Reid’s partner of two months was
infected after Reid repeatedly promised that he was HIV-negative.
Reid had infected his partner as a way of securing his relationship.
Reid was sentenced to 10-and-a-half years imprisonment for
‘committing a malicious act with intent’ (see Stewart (2006)).

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapter 30
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 16
Reynolds C (with Howse, G), Public health law and regulation
(2004) Federation Presss, Sydney, chapter 8
Stewart C, ‘HIV, non-disclosure and infection in Australia (2006)
3 Journal of Bioethical Inquiry 123

Cases
Harvey v PD [2004] NSWCA 97

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 CHAPTER 15

Reproductive health
15.1 Legal status of reproductive materials and
embryos
[15.1.1] What is the legal status of gametic material, such as
sperm, ova and frozen embryos? Gametic material, like other forms
of human tissue, is a res nullius, a ‘thing belonging to no-one’: see
[12.1.2]. The question of whether sperm and ova are property has
not been directly addressed in Australia, but following from general
principles it is reasonable to presume that a person does not own
their gametic material because it cannot be considered as property.
The only exception to this is where such material has been changed
by some process of labour.
However, most jurisdictions recognise that reproductive material
can only be collected, stored and used with consent. While this does
not recognise a property right, it does serve to give some form of
control over such material.

[15.1.2] What is the legal status of embryos in the womb? Embryos

in the womb, while being recognised as human and alive, are not
recognised as legal persons. Legal personality is only bestowed on
children who are born alive. This is known as the born alive rule. The
rule is satisfied by any indicia of life, such as breathing, coughing
or sneezing, a pulse in the umbilical cord, or movement of the body
or lips. The child can be considered alive and still be attached to the
mother by the umbilical cord.
Before being born alive a fetus has no legal rights, and for
the most part is treated as being part of the mother’s body. If
an embryo is injured and dies in utero, the injury is deemed an
injury to the mother. However, if the embryo is born alive but
later suffers from the injury, the child can sue the person responsible
for the prenatal injury in tort: see [15.5.1]. If the child is born alive
but later dies from the prenatal injury, the Crown may bring a

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prosecution of homicide against the responsible person.

Case examples
In X and Y v Pal (1991) 23 NSWLR 26, a specialist obstetrician
and gynaecologist was found to be negligent for not testing his
pregnant patient for syphilis. The duty of care was extended to
the unborn child, and the doctor was also liable for the child’s
congenital syphilis. Mahoney JA said (at 30):
In my opinion there is no difficulty in this regard from the fact merely
that the act or default occurred before the plaintiff was born. If A is
negligent in building a building and five years later it falls down, A is
liable not only to those who were born when the building was built
but also to those who have been born since the building was built.
… Liability in negligence does not depend upon the defendant being
able, when the act or default occurred, to identify the person ultimately
injured. It is sufficient, at the least, that he can identify a class of
persons apt to be injured and that the plaintiff is, in the event, of that
class.
A further claim by the child for her mental and physical disabilities
failed because there was not sufficient proof that those disabilities
had been caused by the congenital syphilis.
R v King (2003) 59 NSWLR 472 concerned the father of an
unborn child who attacked the mother after she refused to have
an abortion. The father’s intention was to cause a miscarriage.
The child was not born alive. The court accepted that the fetus
was part of the mother’s body for the purpose of the law of
assault occasioning grievous bodily harm, so that its death was
an assault on the mother.
R v F (1993) 40 NSWLR 245 concerned a child who was
born prematurely and died after its mother was involved in a car
accident caused by the defendant. The issue for the court was
whether the child was a ‘person’ within the meaning of s 52A of
the Crimes Act 1900 (NSW), which deals with death caused by
impact with a motor vehicle. Grove J stated (at 247):
As observed by the learned trial judge the common law has long
recognised that where an unborn child receives injuries, is born alive
but dies of those antenatal injuries, the perpetrator may suffer criminal
liability for homicide: R v Senior (1832) 1 Mood CC 346; 168 ER 1798;
R v West (1848) 2 Cox CC 500. In New South Wales the definition
of murder in s 18 of the Crimes Act refers to ‘intent to kill or inflict
grievous bodily harm on some person’, and there is no reason to hold
that the common law principle as to liability would not continue to
apply. Legislation of provisions such as those penalizing procuration
of miscarriage (Crimes Act, s 83) do not purport to nor operate so
as to abrogate it. An offender may be convicted of the murder or
manslaughter of a ‘person’ being an unborn infant at the time of the

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felonious act causing death and it can be noted that one arraigned for
those crimes may by express provision (s 52A(5)) be convicted of an
offence under s 52A.

15.2 Abortion
[15.2.1] What is the legal definition of abortion at common law?
Legally, abortion is the act of procuring a miscarriage, either with an
instrument or with a drug. While there is controversy over its legal
history, abortion has long been regarded as a crime at common law,
particularly after ‘quickening’, when the movement of the fetus
becomes perceptible to the pregnant woman. It is also an offence in
most jurisdictions for a woman to perform an abortion on herself, or
for a person to supply the means for procuring miscarriages.
The defence of necessity (see [6.4.1]) applies to abortion, so
that an abortion can be provided at common law if it is necessary
to prevent harm to the woman’s physical or mental health. Such
abortions are referred to as lawful abortions, in contrast with unlawful
abortions.

Case examples
In R v Davidson [1969] VR 667, an abortion was said to be
unlawful if either:
the accused [the doctor] did not honestly believe on reasonable
grounds that the act done by him was necessary to preserve the
woman from a serious danger to her life or her physical or mental
health (not being merely the normal dangers of pregnancy and
childbirth) which the continuance of the pregnancy would entail; or…
the accused did not honestly believe on reasonable grounds that
the act done by him was in the circumstances proportionate to the
need to preserve the woman from a serious danger to her life or her
physical or mental health (not being merely the normal dangers of
pregnancy and childbirth) which the continuance of the pregnancy
would entail.
In R v Wald (1971) 3 DCR (NSW) 25, Levine DCJ accepted the
test set out in Davidson and stated further that:
it would be for the jury to decide whether there existed in the case
of each woman any economic, social or medical ground or reason
which in their view could constitute reasonable grounds upon which
an accused could honestly and reasonably believe there would result
a serious danger to her physical or mental health [29].
In R v Sood [2006] NSWSC 1141, the accused was a doctor
who was asked to perform an abortion on a woman who was
pregnant with a child of between 22 and 24 weeks’ gestation.

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Dr Sood quoted a fee of $1800 for the procedure, and told the
patient that longer and heavier bleeding were the only likely
complications. She did not carry out a physical examination, or
discuss alternatives to termination, or inquire about the patient’s
reasons for wanting an abortion.
At a later appointment Dr Sood inserted a prostaglandin tablet
into the patient’s vagina, gave her two more tablets, charged her
$500 (she could only pay $400 at the time), and instructed her to
take the tablets orally and return the next day for the procedure
with the balance of the money. That evening the patient went
into labour, and gave birth to the child in the toilet the following
morning. There was conflicting evidence as to whether the child
was born alive.
Dr Sood was convicted of using a drug to unlawfully procure
a miscarriage. She was also charged with the manslaughter of the
child, but was acquitted, presumably because of the difficulty of
establishing whether the child was born alive. Simpson J stated:
Unlawfulness is thus established if the Crown proves, beyond
reasonable doubt, one or more of the following: (i) that the accused
person did not honestly and genuinely hold the requisite belief (ie
that termination of pregnancy was necessary in order to protect the
mother from serious danger to her life or health, whether physical or
mental); or (ii) that, if and to the extent that, such a belief were held,
it was not based upon reasonable grounds; or (iii) that a reasonable
person in the position of the accused would have considered that the
risk of termination was out of proportion to the risk to the mother of
the continuation of the pregnancy [17].
This formulation is at odds with the formulation in Davidson and
Wald, as it makes the test of proportionality objective rather than
subjective by considering what a reasonable person would have
considered regarding the balance of risks.
Dr Sood’s conviction arose primarily because she failed to
make the proper inquiries that could have satisfied her about the
need for the abortion. The judge stated that, had she made those
inquiries, she may well have formed a reasonable belief about risk
and proceeded to lawfully terminate the pregnancy.

[15.2.2] How is abortion regulated in Australia? Abortion is

regulated by the states and territories, and each jurisdiction has
different laws. Efforts to create a uniform law regulating abortion
in Australia have failed. The Model Criminal Code Committee in
charge of the creation of a uniform Australian criminal code felt
that it was unable to make firm and detailed recommendations re-
garding abortion due to political controversy (Model Criminal Code

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[15.2.2] The Australian Medico–Legal Handbook

Committee, 1998). This leaves Australians with eight different laws

on abortion: see table 15.2.2.
Most jurisdictions also recognise the related crime of child
destruction.

TABLE 15.2.2 Abortion: legislation and principal features

ACT Crimes (Abolition of Abortion) Act 2002; Health Act 1993
Abortion has been decriminalised in the ACT. The only requirements
are under the Health Act, which stipulates that only doctors can carry
out abortions (s 81), and that they must be carried out in approved
premises (s 82). No-one is obliged to perform or assist in the
performance of an abortion (s 84).
NSW Crimes Act 1900
The Act prohibits the administration of a drug or use of instruments to
procure an abortion, and the supply of the means. It is also a crime for
a pregnant woman to self-administer drugs or use an instrument for
procuring an abortion (ss 82–84).
The common law defence applies to these crimes: see [15.2.1].
NT Criminal Code Act 1983; Medical Services Act 1982
Under ss 208B & 208C of the Criminal Code Act, the administration
or supply of a drug, or the use or supply of an instrument, by a non-
medical professional to procure an abortion is illegal. The issue of
whether the woman was actually pregnant is not material to the offence.
Under s 11(1) of the Medical Services Act, a medical practitioner
may terminate a woman’s pregnancy if:
(a) after medically examining her, the practitioner reasonably believes she
has been pregnant for not more than 14 weeks; and
(b) after medically examining her, the practitioner and another medical
practitioner [at least one must be a gynaecologist or obstetrician unless
this is not reasonably practicable: s 11(2)] are of the opinion, formed in
good faith:
(i) the continuance of the pregnancy would involve greater risk to her
life or greater risk of harm to her physical or mental health than if the
pregnancy were terminated; or
(ii) there is a substantial risk that, if the pregnancy were not terminated
and the child were born, the child would be seriously handicapped
because of physical or mental abnormalities; and
(c) the treatment is given in a hospital; and
(d) when giving the treatment, the practitioner reasonably believes she has
been pregnant for not more than 14 weeks; and
(e) the appropriate person consents to the giving of the treatment.
Under s 11(3), a medical practitioner may terminate a woman’s
pregnancy if:
(a) after medically examining her, the practitioner:
(i) reasonably believes she has been pregnant for not more than 23
weeks; and
=
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= TABLE 15.2.2 Abortion: legislation and principal features

(ii) is of the opinion termination of the pregnancy is immediately
necessary to prevent serious harm to her physical or mental health;
and
(b) when giving the treatment, the practitioner reasonably believes she has
been pregnant for not more than 23 weeks; and
(c) the appropriate person consents to the giving of the treatment.
Under s 11(4), at any stage of the pregnancy it will be lawful to
terminate a woman’s pregnancy if:
(a) the treatment is given or carried out in good faith for the sole purpose of
preserving her life; and
(b) the appropriate person consents to the giving of the treatment.
The appropriate person is the woman (if she is at least 16 and capable)
or someone with lawful authority.
Qld Criminal Code Act 1899 ss 224–226, 282
Sections 224 & 226 prohibit the administration of drug or use of
instruments to procure an abortion, and the supply of the means. It is
also a crime for the pregnant woman to self-administer drugs or use
instruments on herself to cause a miscarriage (s 225). Section 282
permits abortions performed in good faith and with reasonable care
and skill for ‘the preservation of the mother’s life’.
This phrase has been read as meaning the preservation of the
woman’s mental and physical health. In R v Bayliss & Cullen [1986] 9
Qld Lawyer Reports 8, the principles of necessity and proportion were
accepted as law for Queensland. In Vievers & Anor v Connolly [1995]
2 QdR 326, s 282 of the Code was confirmed as a defence, and it was
accepted that serious danger to mental health could crystallise after
the birth of a severely impaired child.
SA Criminal Law Consolidation Act 1935
Sections 81 and 82 prohibits the administration of a drug or use of
instruments to procure an abortion, and the supply of the means.
However, under s 82A(1)(a) abortion may be lawful if it is performed by
a doctor in a hospital, and the treating doctor and another doctor both
examined the woman and both in good faith believe:
(i) that the continuance of the pregnancy would involve greater risk to
the life of the pregnant woman, or greater risk of injury to the physical
or mental health of the pregnant woman, than if the pregnancy were
terminated; or
(ii) that there is a substantial risk that, if the pregnancy were not terminated
and the child were born to the pregnant woman, the child would
suffer from such physical or mental abnormalities as to be seriously
handicapped.
Abortion may also be lawful if the medical practitioner formed an
opinion in good faith ‘that the termination was immediately necessary
to save the life, or prevent grave injury to the physical or mental health
of the pregnant woman’ (s 82A(1)(b)).
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= TABLE 15.2.2 Abortion: legislation and principal features

Tas Criminal Code Act 1924
Sections 134–135 make it a crime for a pregnant woman or another
person to procure a miscarriage using a drug or an instrument. It is
also an offence to aid and abet such a miscarriage.
However, s 164 makes it legally justified to perform an abortion if:
• two registered medical practitioners have certified, in writing, that
the continuation of the pregnancy would involve greater risk of
injury to the physical or mental health of the pregnant woman than if
the pregnancy were terminated; and
• the woman has given informed consent unless it is impracticable for
her to do so.
At least one of the medical practitioners must specialise in obstetrics
or gynaecology. The requirement for informed consent means the
medical practitioner must counsel the woman about the medical risks
of termination and of carrying a pregnancy to term, and must refer
her to counselling about other matters relating to termination and
pregnancy.
Vic Crimes Act 1958 ss 65–66
The position in Victoria is similar to that in NSW. The Crimes Act
prohibits the unlawful administration of a drug or instruments to
procure an abortion, and the supply of the means. It is also a crime for
a pregnant woman to self-administer drugs or use an instrument for
procuring an abortion.
The common law defences apply to these crimes: see [15.2.1].
WA Criminal Code; Health Act 1911
Abortion is illegal under s 199(1) of the Code unless it is performed by
a medical practitioner in good faith and in accordance with s 334 of the
Health Act. Section 334(3) states that an abortion is legal if:
(a) the woman concerned has given informed consent; and
(b) the woman concerned will suffer serious personal, family or social
consequences if the abortion is not performed; or
(c) serious danger to the physical or mental health of the woman concerned
will result if the abortion is not performed; or
(d) the pregnancy of the woman concerned is causing serious danger to her
physical or mental health.
Under s 334(5), ‘informed consent’ means consent freely given by the
woman [over the age of 16] where:
(a) a medical practitioner [apart from the treating doctor] has properly,
appropriately and adequately provided her with counselling about the
medical risk of termination of pregnancy and of carrying a pregnancy to
term;
(b) a medical practitioner [apart from the treating doctor] has offered her the
opportunity of referral to appropriate and adequate counselling about
matters relating to termination of pregnancy and carrying a pregnancy to
term; and
=
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= TABLE 15.2.2 Abortion: legislation and principal features

(c) a medical practitioner [apart from the treating doctor] has informed her
that appropriate and adequate counselling will be available to her should
she wish it upon termination of pregnancy or after carrying the pregnancy
to term.
If informed consent cannot be practicably given the abortion may still
be performed if serious danger to her physical or mental health will
result if it is not performed.
However, under s 334(7), if the abortion occurs at 20 weeks or more
gestation, it is not justified unless:
(a) 2 medical practitioners who are members of a panel of at least 6 medical
practitioners appointed by the Minister for the purposes of this section
have agreed that the mother, or the unborn child, has a severe medical
condition that, in the clinical judgment of those 2 medical practitioners,
justifies the procedure; and
(b) the abortion is performed in a facility approved by the Minister.

[15.2.3] What is child destruction? Child destruction is a crime

related to abortion in which the crime consists of the killing of an
unborn child that was capable of being born alive. The offence
is intended to cover situations where a highly developed fetus is
destroyed, so that the person responsible does not escape liability
for homicide.
New South Wales does not have a specific offence of child
destruction, but all the other jurisdictions do: see table 15.2.3.

TABLE 15.2.3 Legislation dealing with child destruction

ACT Crimes Act 1900 s 42
NT Criminal Code Act 1983 s 170
Qld Criminal Code Act 1899 s 313
SA Criminal Law Consolidation Act 1935 s 82A
Tas Criminal Code Act 1924 s 290
Vic Crimes Act 1958 s 10
WA Criminal Code s 290

There are difficulties with the concept of ‘capable of being

born alive’. In South Australia and Victoria the fact that a child is at
28 weeks gestation is considered proof that the child was capable
of being born alive. In the ACT, the Northern Territory, Queensland
and Western Australia the killing must occur at the time of the child’s
delivery. In Tasmania the requirements are vague. It is a crime there

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to ‘cause the death of a child which has not become a human being
in such a manner that he would have been guilty of murder’.
There are no reported Australian cases on child destruction.

[15.2.4] Do fathers have a right to prevent an abortion? No. Fathers

have no right to prevent an abortion, and courts and governmental
authorities have no power to control the mother for the benefit of
the fetus.

Case example
In the Marriage of F (1989) 13 Fam LR 189 concerned a
separated husband and wife. The wife had fallen pregnant, and
had indicated that she would terminate the pregnancy because
of the failure of the marriage. The father brought an application to
stop the abortion. It failed. The unborn child had no rights, and
the interests of the husband were outweighed by the woman’s
right to control her body.

15.3 Artificial reproduction

[15.3.1] Are there laws controlling artificial insemination?
Artificial insemination, whereby donor sperm is introduced into a
woman’s reproductive system, is legal at common law. There is legis-
lation in South Australia, Victoria and Western Australia that affects
the practice, but other jurisdictions have left it unregulated.
In South Australia, artificial insemination services provided free
are not regulated. In contrast, under s 13(7) of the Reproductive
Technology (Clinical Practices) Act 1988 artificial insemination for a
fee must be performed by a licensed person or a medical practitioner
who has submitted their name for registration to the minister and has
made an undertaking to observe the code of ethical practice contained
in the Reproductive Technology (Code of Ethical Clinical Practice)
Regulations 1995.
In Victoria, s 7 of the Infertility Treatment Act 1995 regulates the
artificial insemination of a woman with sperm from a man who is not
her husband. Insemination can only be carried out by an approved
doctor (in a licensed hospital or centre, or elsewhere with approval)
on the basis that there is compliance with the Infertility Treatment
Act’s requirements concerning things like consent and appropriate
paperwork. Presumably the artificial insemination of a woman with
her husband’s sperm is a private matter, and is left unregulated for
that reason.

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 Reproductive health [15.3.2]

In Western Australia, s 6 of the Human Reproductive Technol-

ogy Act 1991 requires a person carrying out artificial insemination
to have a licence or to be an approved medical practitioner who has
provided a written undertaking to follow the code of practice of the
Human Reproductive Technology Council.

[15.3.2] How are in vitro fertilisation and other reproductive

technologies regulated? Only South Australia, Victoria and Western
Australia have specific legislation regulating artificial conception.
However, fertility service providers generally conform with both:
• the NHMRC’s Ethical guidelines on the use of assisted
reproductive technology in clinical practice and research 2004
(www.nhmrc.gov.au/ethics/human/issues/art.htm), and
• the Code of practice for units using in vitro fertilisation
and related reproductive technologies, prepared by the
Reproductive Technology Accreditation Committee of the
Fertility Society of Australia (www.fsa.au.com).
In South Australia, the Reproductive Technology (Clinical Practices)
Act 1988 creates the South Australian Council on Reproductive
Technology, which is responsible for licensing infertility treatment
service providers. A licence can only be granted if the service fulfils a
genuine and substantial social need that cannot be adequately met by
existing licensees. There is also a code, contained in the Reproductive
Technology (Code of Ethical Clinical Practice) Regulations 1995,
which deals with issues of consent, storage, disposal, eligibility
criteria and record-keeping. The code prohibits a number of proce-
dures, including:
• culturing or maintaining an embryo outside the body
• transplanting more than three embryos or ova in one cycle
• mixing gametes or embryos from different sources
• using donor gametes from a donor suffering from an illness,
disease or genetic defect or trait for which screening is
recommended by the Fertility Society’s donor screening guidelines
• using donor gametes that have been used to create ‘too many
children’
• using gametes of close family members
• using embryos already used in research, unless there is a
reasonable expectation that they will implant and develope
normally.
In Victoria, the Infertility Treatment Act 1995 creates the Infertility

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Treatment Authority, which acts as a licensing and compliance body.

The Act sets out requirements regarding consent, storage, disposal,
eligibility criteria and record-keeping, as well as regulations con-
cerning the use of embryos in research. Prohibited practices under
the Act include:
• creating a human embryo clone
• placing a human embryo clone in a human body or the body of
an animal
• importing or exporting a human embryo clone
• creating a human embryo other than by fertilisation, or
developing such an embryo
• creating a human embryo for a purpose other than achieving
pregnancy in a woman
• creating or developing a human embryo containing genetic
material provided by more than two people
• developing a human embryo outside a woman’s body for more
than 14 days
• using precursor cells from a human embryo or a human fetus
to create or develop a human embryo
• making heritable alterations to the genome
• collecting a viable human embryo from a woman’s body
• creating a chimeric or hybrid embryo from animal and human
gametes
• placing a human embryo in an animal
• importing, exporting or placing a prohibited embryo
• trading commercially in human eggs, human sperm or human
embryos
• transplanting gametes or embryos used for research, with
approval, into a woman’s body
• using gametes or embryos produced by children
• procedures involving gametes of people known to be dead
• sex selection.
In Western Australia the Human Reproductive Technology Act 1991
regulates artificial reproduction through the creation of the Western
Australian Reproductive Technology Council, which gives advice
to the Commissioner and Minister for Health regarding standards
or licensing and treatment. In addition to the Act, there are the di-
rections of the Commissioner of Health contained in the Western
Australian Government Gazette No 201, 30 November 2004, which
contain the latest code of practice dealing with consent, eligibility,

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storage, record-keeping, information provision, personnel, premises

and minimum standards of practice: see www.rtc.org.au/.
Like the Victorian legislation, Part 4A of the Western Australian
Act prohibits a number of practices, including:
• creating a human embryo clone
• placing a human embryo clone in a human or animal body
• importing or exporting a human embryo clone
• creating a human embryo other than by fertilisation, or
developing such an embryo
• creating a human embryo for a purpose other than achieving
pregnancy in a woman
• creating or developing a human embryo containing genetic
material provided by more than two people
• developing a human embryo outside the body of a woman for
more than 14 days
• using precursor cells from a human embryo or a human fetus
to create a human embryo, or developing such an embryo
• causing heritable alterations to the genome
• collecting a viable human embryo from a woman’s body
• creating a chimeric or hybrid embryo
• placing of a human embryo in an animal
• importing, exporting or placing a prohibited embryo
• commercial trading in human eggs, human sperm or human
embryos.

[15.3.3] Is human cloning permissible in Australia? Human

reproductive cloning, where an embryonic clone is made and implanted
in a woman for the purpose of giving birth to a child, is illegal in all
Australian jurisdictions. The Northern Territory has no specific laws,
but is presumably governed in any case by the federal Act.
Therapeutic cloning (somatic cell nuclear transfer), where an
embryonic clone is made but then destroyed by the removal of its
stem cells, was banned until recently at Commonwealth level and
in the states and the ACT (the Northern Territory has no legislation
on the issue). However, the Commonwealth government has now
passed the Prohibition of Human Cloning for Reproduction and
the Regulation of Human Embryo Research Amendment Act 2006,
which allows for therapeutic cloning. Victoria and New South Wales
have moved to amend their legislation in response. Whether the
other states and the ACT will amend their laws remains to be seen,

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but if there is inconsistency, the federal laws will override their

state and territory counterparts to the extent that the federal law is
constitutionally valid.
Laws dealing with reproductive and therapeutic cloning are set
out in table 15.3.3.

TABLE 15.3.3 Reproductive and therapeutic cloning:

legislation
Cth Prohibition of Human Cloning Act 2002; Research Involving
Human Embryos Act 2002; Prohibition of Human Cloning for
Reproduction and the Regulation of Human Embryo Research
Amendment Act 2006
ACT Human Cloning & Embryo Research Act 2004
NSW Human Cloning & Other Prohibited Practices Act 2003;
Research Involving Human Embryos (New South Wales) Act
2003
Qld Research Involving Human Embryos & Prohibition of Cloning
Act 2003
SA Prohibition of Human Cloning Act 2003; Research Involving
Human Embryos Act 2003
Tas Human Cloning & Other Prohibited Practices Act 2003; Human
Embryonic Research Regulation Act 2003
Vic Infertility Treatment Act 1995
WA Human Reproductive Technology Act 1991

[15.3.4] Is sex selection of embryos legal in Australia? Techniques

to select embryos according to sex are banned in Victoria under s 50
of the Infertility Treatment Act 1995, unless the child must be of a
particular sex to avoid the risk of transmission of a genetic abnormality
or disease to the child.
Other jurisdictions have not banned the practice, but para 11.1 of
the NHMRC’s Ethical guidelines on the use of assisted reproductive
technology in clinical practice and research 2004 states that:

Sex selection is an ethically controversial issue. The Australian

Health Ethics Committee believes that admission to life should not
be conditional upon a child being a particular sex. Therefore, pending
further community discussion, sex selection (by whatever means)
must not be undertaken except to reduce the risk of transmission of
a serious genetic condition.

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[15.3.5] Is access to artificial reproductive technologies limited?

All three states that regulate artificial reproductive technology have
eligibility criteria for access based on either:
• infertility, or
• the need for artificial reproductive technology to avoid the
transmission of disease.
Eligibility criteria also include, among other things, criminal record,
health issues that may affect the potential parents’ ability to raise
a child, and whether a potential parent has ever had a child perma-
nently removed from their care.
Sexuality and marital status are also relevant in South Australia
and Victoria. In South Australia access is granted to married couples
and de facto heterosexual couples who have cohabitated for at least
five years (s 13). Homosexual couples and single women are denied
access.
In Victoria, a woman must be married and living with her husband
on a genuine domestic basis, or be living with a man in a de facto
relationship. Again, this would deny access to lesbian couples and
single women.
These restrictions have been found to breach discrimination
laws. In two cases, the applicants’ successful claim was based on the
prohibition of discrimination on the grounds of marital status under
the Sex Discrimination Act 1984 (Cth) (Pearce v South Australian
Health Commission (1996) 66 SASR 486; McBain v State of Victoria
(2000) 99 FCR 116). In the McBain case an application to the High
Court on a constitutional writ was dismissed. The federal government
stated that it would amend the Act to allow for such discrimination,
but this has not yet occurred. The Victorian Law Reform Commission
(2007) has recommended that the Infertility Treatment Act be amended
to remove the requirement for the woman to be in a relationship
with a man.
In Western Australia access is available to single women and
homosexual couples (Acts Amendment (Lesbian and Gay Law Re-
form) Act 2002).

[15.3.6] Is it possible to use gametic material after the donor

has died? In Victoria, it is illegal to either artificially inseminate a
woman with, or transfer into a woman, any gamete from a person
known to be dead (Infertility Treatment Act 1995 s 43). However, it
is permissible to use frozen embryos conceived using donor gametic

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material, after the donor has died. Changes were made to the Victorian
legislation after publicity concerning Joanne Badel-Caccoma, who
had conceived a child with her husband Pino, but miscarried on the
day Pino died. Badel-Caccoma sought another implantation with the
remaining embryos, but Victorian legislation at the time prevented
their use because the donor had died. Amendments made in 2001
allowed her to be implanted with remaining embryos.
It is also possible to use sperm from a man known to be dead to
create an embryo that is then implanted in a woman, as long as the
man consented to such a use of his sperm.

Case example
In AB v The Attorney-General for the State of Victoria [2005] VSC
180, the Victorian Supreme Court was asked to decide on the
lawfulness of using sperm from a dead man to create an embryo
for implanting. The man had died in a motor vehicle accident, and
his wife had arranged for sperm to be extracted from his body.
She now wanted to use the sperm to have a baby.
Hargrave J found that s 42 of the Infertility Treatment Act
only applied to insemination or transfer of gametic material, not
to implantation of an embryo. The provisions preventing the
implantation of embryos made from a deceased person’s gametic
material had been removed. However, under s 12 of the Act the
procedure could only be commenced with the consent of the
deceased. As he had not given his consent, the procedure could
not take place in Victoria.
The wife then asked for the sperm to be taken to the
ACT, where she lived. Her request was denied by the Infertility
Treatment Authority. She apealed the decision to the Victorian
Civil and Administrative Tribunal, which approved her request (YZ
v Infertility Treatment Authority (General) [2005] VCAT 2655).

In Western Australia, the Commissioner of Health’s Directions state

at para 8.9 that:

Any person to whom the licence applies must not knowingly use or
authorise the use of gametes in an artificial fertilisation procedure
after the death of the gamete provider.

In other jurisdictions the NHMRC’s Ethical guidelines on the use of

assisted reproductive technology in clinical practice and research
2004 apply, although they do not have the force of law. Para 6.15
states that:

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Clinics must not facilitate use of gametes in such circumstances

unless all of the following conditions are met:
• a deceased person has left clearly expressed and witnessed
directions consenting to the use of his or her gametes; or a person
in a post-coma unresponsive state (‘vegetative state’) prepared
clearly expressed and witnessed directions, before he or she
entered the coma, consenting to the use of his or her gametes; or a
dying person prepares clearly expressed and witnessed directions
consenting to the use, after death, of his or her gametes; and
• the prospective parent received counselling about the consequences
of such use; and
• the use does not diminish the fulfillment of the right of any
child who may be born to knowledge of his or her biological
parents.

Courts are currently split on the issue of whether approval should

be granted to harvest gametes from corpses. As was seen in the AB
and YZ cases, it is technically possible to remove sperm and oocytes
from a corpse and then use them to create embryos, but it is not clear
whether the relatives or the courts have the power to authorise such
a procedure.

Case examples
In MAW v Western Sydney Area Health Service [2000] NSWSC
358, O’Keefe J found that he did not have the power to order the
removal of sperm from a man who was soon going to die after
being struck by a truck, as the procedure was not for the welfare
or benefit of the patient.
In In the matter of Gray [2000] QSC 390, a similar approach
was taken to removing sperm from a corpse. It was found that
the court’s parens patriae power only applied to living persons,
and that its only rights over the corpse were possessory rights
to ensure proper burial. These rights did not confer any power to
remove gametes. Gray was followed in the later case of Baker v
Queensland [2003] QSC 2, and approved in AB v The Attorney-
General for the State of Victoria [2005] VSC 180.
Other courts have refused to follow these cases. There are at
least four decisions in which approval has been given to remove
sperm, on the pragmatic basis that extraction can only occur
within a limited timeframe and the court should make such orders
to maintain the status quo, before a more considered judgment is
made about what to do with the gametes. See Re Denman [2004]
2 Qd R 595; AB v State of Victoria (VSC unreported decision, 13

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July 1998); Fields v Attorney-General of Victoria [2004] VSC 547;

and Y v Austin Health [2005] VSC 427.

15.4 Surrogacy
[15.4.1] Are surrogacy arrangements legal? Surrogacy occurs when
a woman agrees to become pregnant and bear a child for another
woman, who has the care of the child after the birth. The ACT,
Queensland, South Australia, Tasmania and Victoria have regulated
surrogacy agreements, primarily by criminalising commercial
surrogacy, and rendering surrogacy agreements void (see table
15.4.1).

TABLE 15.4.1 Surrogacy agreements: legislation and principle

features
ACT Parentage Act 2004
Commercial agreements where a woman is given a payment or reward
are illegal. This does not apply to payment for expenses connected
with:
• a pregnancy (including any attempt to become pregnant)
• birth of a child born as a result of that pregnancy
• care of a child born as a result of that pregnancy.
Advertising surrogacy and third party procurement of surrogacy is
illegal.
Providing technical services and assistance to commercial surrogacy is
also a crime.
Qld Surrogate Parenthood Act 1988
All surrogacy agreements (whether commercial or gratuitous) are
illegal. Advertising surrogacy is also illegal.
SA Family Relationships Act 1975
All surrogacy agreements (whether commercial or gratuitous) are
illegal. Advertising and procuring surrogacy is also illegal. It is an
offence to enter into a commercial surrogacy, or to advertise or procure
surrogacy.
Tas Surrogacy Contracts Act 1993
Commercial surrogacy is an offence. It is an offence to advertise or
procure surrogacy. All surrogacy agreements are void.
Vic Infertility Treatment Act 1995
Commercial surrogacy is an offence. It is an offence to advertise or
procure surrogacy. All surrogacy agreements are void.

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15.5 Duties of care and the unborn

[15.5.1] What are the procreative torts? The advent of new repro-
ductive treatments and technologies has given rise to new duties of
care in the tort of negligence.
Three specific negligence torts have developed that reflect the
content of these new duties. These are:
• wrongful conception
• wrongful birth
• wrongful life.
These torts are all subject to the rules regarding duty, breach,
causation, remoteness and defences discussed in chapter 4, but they
raise additional conceptual problems.

[15.5.2] What is wrongful conception? Wrongful conception is a

claim brought by the parent (or parents) of a child who was born
because of a negligent sterilisation procedure. The common law was
challenged by such claims because:
• there are policy reasons against finding that the life of a child
is ‘harmful’ and worthy of compensation (English courts have
argued that damages should only be recoverable for the costs
of the pregnancy and the special expenses incurred when a
child is born with disabilities)
• even if it could be said that a child was a tortious harm, it is
extremely difficult to calculate the actual damages relating to
having and raising an unwanted child. Questions arise as to
whether the benefits of having the child should also be taken
into account, or whether the parents should mitigate their loss
by having the child adopted.

Case example
In Cattanach v Melchior (2003) 215 CLR I, a husband and wife
claimed damages for the costs of raising their healthy son. The
woman had undergone a procedure to clip her fallopian tubes.
Only one tube was clipped, in the mistaken belief that the other
had been removed at an earlier time. The doctor failed to inform
the parents of the risk of pregnancy; nor did he inform them of
tests that could be carried out to check whether the procedure
was successful.
The majority of the High Court found that the claim was an
application of the ordinary principles of negligence. The claim was
for the economic costs of raising the child, not for harm caused

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by the child’s life. The majority did not accept the policy argument
against recognising the claim. For example, McHugh J stated:
To suggest that the birth of a child is always a blessing, and that the
benefits to be derived therefrom always outweigh the burdens, denies
the first category of damages awarded in this case; it also denies the
widespread use of contraception by persons such as the Melchiors
to avoid just such an event. The perceived disruption to familial
relationships by, for example, the Melchiors’ third child later becoming
aware of this litigation, is at best speculative. In the absence of any
clear and accepted understanding of such matters, the common law
should not justify preclusion of recovery on speculation as to possible
psychological harm to children [79].
On the issue of setting off the benefits, the majority found that it
was unnecessary, as the economic costs of raising the child were
unrelated to the benefits of having the child. McHugh J stated:
The benefits received from the birth of a child are not legally relevant
to the head of damage that compensates for the cost of maintaining
the child. A different case would be presented if the mother claimed
damages for ‘loss of enjoyment of life’ as the result of raising the child.
If such a head of damage were allowable, it would be correct to set
off against the claim all the benefits derived from having the child.
But the head of damages that is relevant in the present case is the
financial damage that the parents will suffer as the result of their legal
responsibility to raise the child. The benefits to be enjoyed as a result
of having the child are not related to that head of damage. The coal
miner, forced to retire because of injury, does not get less damages for
loss of earning capacity because he is now free to sit in the sun each
day reading his favourite newspaper. Likewise, the award of damages
to the parents for their future financial expenditure is not to be reduced
by the enjoyment that they will or may obtain from the birth of the child
[at 90].

After the decision was handed down New South Wales, Queensland
and South Australia all passed legislation to prevent damages being
awarded for the costs of raising a healthy child. Damages are
recoverable for the costs of raising a child with a disability.

[15.5.3] What is wrongful birth? Wrongful birth is a claim brought

by the parent (or parents) for the negligent failure to advise a pregnant
woman about options for having an abortion. The claim suffers from
the same conceptual and policy problems as wrongful conception,
with the added complexities of abortion regulation.

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Case example
CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
concerned a woman who was negligently informed on a number
of occasions that she was not pregnant. Even after positive test
results showed that she was pregnant, she was still negligently
informed that this was not the case. The woman gave birth to
a healthy child, and sued her health provider for negligence in
failing to advise her about her pregnancy, so that she missed the
chance to have an abortion.
A majority of the New South Wales Court of Appeal found that
the woman was owed a duty of care, which had been breached
by the service providers. It was found that an abortion would have
been lawful, and that she could ask for damages. However, the
judges disagreed on the calculation of damages. It was decided
by the majority that damages would only be payable for costs
related to the pregnancy, as the mother could have chosen to
mitigate the loss by giving the child up for adoption.

[15.5.4] What is wrongful life? Wrongful life is similar to wrongful

conception, except that the claim is made by the child, who would
have been aborted had the mother been advised about her options
for termination. Wrongful life claims are not recognised in
Australia.

Case examples
In Harriton v Stephens (2006) 226 ALR 457, the High Court
rejected a claim brought by a child against a physician for a
failure to advise the mother to have an abortion. Alexia Harriton
was born with severe disabilities, including blindness, deafness,
mental retardation and spasticity, requiring constant supervision
and care for the rest of her life. Her disabilities were caused by
rubella embryopathology, which was negligently misdiagnosed by
her mother’s doctor.
The majority found that there was no duty owed to the fetus
concerning advice on abortion. Rather the duty was owed to the
mother, who was protected by wrongful birth claims. Damages
could not be assessed, as the court could not compare the
child’s life with non-existence to determine the extent of her
suffering. Public policy was also against any claim suggesting that
people with disabilities were worth less than those without them.
A similar claim was dismissed in Waller v James; Waller v
Hoolahan (2006) 226 ALR 457. In this case the child, Keedon
Waller, had been conceived using IVF technology. It was alleged
that the health service provider negligently failed to screen the
child for AT3 deficiency, a genetic condition carried by his father.

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AT3 deficiency is a clotting disorder, which led to Keedon suffering

a cerebral thrombosis after being born. As a result, Keedon has
permanent brain damage.
The majority of the High Court again found that damages
were not recoverable, because Keedon’s life was not seen as a
legally recognised injury.

15.6 Consent to sexual relations

[15.6.1] What is the age of consent to sexual relations? Each
jurisdiction sets an age at which a person is presumed to be able to
consent to engaging in sexual intercourse (see table 15.6.1). Sexual
relations with people under this age is a crime.
Each jurisdiction also sets out a number of defences to such
crimes, such as:
• a reasonable belief that the sexual partner was older than the
age of consent
• the fact that the sexual partner was married to the defendant
• the age of the victim and the age difference between the sexual
partners:
– in Western Australia, that the defendant was less than three
years older than the victim
– in the ACT and Victoria, that the defendant was less than
two years older than the victim and the victim was older
than 10
– in Tasmania, as long as there was no anal sex, that the
younger person was over 12 and the older was not more
than three years their senior, or that the younger person was
over 15 and the older was not more than five years their
senior.

TABLE 15.6.1 Ages of consent to sexual intercourse

(heterosexual and homosexual)
ACT Crimes Act 1900 s 55 16
NSW Crimes Act 1900 ss 66A–66C 16
NT Criminal Code Act 1983 ss128, 133 16
Qld Criminal Code Act 1899 ss 208, 215 16 (18 for anal sex)
SA Criminal Law Consolidation Act 1935 17 (defence if both
s 49 parties were under 17)
Tas Criminal Code Act 1924 ss 124, 127 17
Vic Crimes Act 1958 16
WA Criminal Code s 331 16

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References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapters
25 & 26
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapters 14 & 17
Model Criminal Code Officers Committee, Model Criminal Code
chapter 5: Non fatal offences against the person (1998)
Victorian Law Reform Commission, Assisted reproductive technology
and adoption: final report (2007)

Cases
AB v State of Victoria (VSC unreported decision, 13 July 1998)
AB v The Attorney-General for the State of Victoria [2005] VSC 180
Baker v Queensland [2003] QSC 2
CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47
Cattanach v Melchior [2003] HCA 38
Fields v Attorney-General of Victoria [2004] VSC 547
Harriton v Stephens [2006] HCA 15
In the Marriage of F (1989) 13 Fam LR 189
In the matter of Gray [2000] QSC 390
MAW v Western Sydney Area Health Service [2000] NSWSC 358
McBain v State of Victoria (2000) 99 FCR 116
Pearce v South Australian Health Commission (1996) 66 SASR 486
R v Bayliss & Cullen [1986] 9 Qld Lawyer Reports
R v Davidson [1969] VR 667
R v F (1993) 40 NSWLR 245
R v King (2003) 59 NSWLR 472
R v Sood [2006] NSWSC 1141
R v Wald (1971) 3 DCR (NSW) 25
Re Denman [2004] 2 Qd R 595
Vievers & Anor v Connolly [1995] 2 QdR 326
Waller v James; Waller v Hoolihan (2006) 226 ALR 457
X and Y v Pal (1991) 23 NSWLR 26
Y v Austin Health [2005] VSC 427
YZ v Infertility Treatment Authority (General) [2005] VCAT 2655

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 CHAPTER 16

Confidential information and

privacy
16.1 Duties of confidence and rights of privacy
[16.1.1] How do duties of confidence and rights of privacy
arise? This chapter examines the professional and legal duties of
confidence and the patient’s rights of privacy. These duties arise
from different sources, but they are complementary in their operation
rather than exclusive. It is possible for health professionals to be
bound by professional obligations of confidence, legal obligations
of confidence, and various privacy laws. While this growing body
of law has created overlap, the obligations fortunately all work in a
very similar fashion, with the result that compliance with one set of
obligations will ordinarily ensure compliance with all the others.
This chapter should be read in conjunction with chapter 17,
Medical records and health information.

16.2 Professional obligations of confidence and

privacy
[16.2.1] Do I have a professional obligation of confidence and
privacy? Yes. All the registration and disciplinary bodies discussed
at [5.5.1] impose obligations of confidence and privacy (see table
16.2.1). Failure to comply may lead to disciplinary action. The ACT
Medical Board’s Standards Statement Code of Conduct provides a
typical example of these obligations:

3 Patients must be able to trust registered medical practitioners

(doctors) with their lives and wellbeing. To justify that trust, all
doctors have a duty to maintain high standards of practice and
respect for human life. As a doctor, you should:
• respect patients’ dignity and privacy; …
• respect and protect confidential information;

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 Confidential information and privacy [16.2.1]

…
11 Successful relationships between doctors and patients depend
on trust. To establish and maintain trust you should:
…
• respect patients’ privacy and dignity;
• treat information about patients as confidential. (There may
be circumstances where the public interest requires that
confidentiality be breached. You should seek appropriate
advice in these circumstances.)

The requirement to preserve confidentiality is motivated by three

important ethical ideas:
• it is respectful of individual integrity and the partial
constitution of the individual’s identity by different kinds of
sensitive information
• it engenders the trust required for patients to divulge
information necessary for medical decision-making and
healthcare, and for public confidence in the medical
profession
• it is a fundamental characteristic of all relationships (and
is therefore a relational or communitarian principle), and
specifically of the relationships between health professionals
and patients (and is therefore a professional virtue).

TABLE 16.2.1: Professional obligations of confidence and

privacy: authorities and policies
ACT Medical Standards statement code of conduct (www.
Board medicalboard.act.gov.au/Standards%20Statements/
docs/code%20of%20conduct.pdf)
NSW Medical Code of professional practice (www.nswmb.org.au/
Board index.pl?page=44)
NT Medical (www.nt.gov.au/health/org_supp/prof_boards/
Board medical/board.shtml#medical)
Qld Medical (www.medicalboard.qld.gov.au/Publications/
Board Publications_files/Good%20Medical%20Practice.pdf)
SA Medical Code of conduct (www.medicalboardsa.asn.au/
Board page2.php?parentid=54&pageid=54)
Medical Council Guide to good medical practice (www.
of Tas medicalcounciltas.com.au/MedicalCouncilPolicies.
htm)
=
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= TABLE 16.2.1: Professional obligations of confidence and

privacy: authorities and policies
Medical AMA code of ethics (www.medicalboardvic.org.au/
Practitioners content.php?sec=36)
Board Vic
WA Medical Duties of a medical practitioner registered with
Board the Medical Board of Western Australia (www.
wa.medicalboard.com.au/pdfs/DutiesOfADoctor.pdf)

16.3 Legal obligations of confidence

[16.3.1] When does a legal obligation of confidence arise? The
legal obligation of confidence arises out of the equitable jurisdiction:
see [3.3.3]. Equity will prevent confidential information being made
public, and it will punish those who make it public.
There are three requirements for an action in breach of confidence
to succeed. These were set out in Coco v A N Clark (Engineers) Ltd
[1969] RPC 41 by Megarry J:

In my judgment, three elements are normally required if, apart from

contract, a case of breach of confidence is to succeed. First, the
information itself … must ‘have the necessary quality of confidence
about it. Secondly, that information must have been imparted in
circumstances importing an obligation of confidence. Thirdly, there
must be an unauthorised use of that information to the detriment of
the party [originally] communicating it [at 47].

[16.3.2] What information has ‘the necessary quality of

confidence’? While it is generally accepted that judgements about
what information should be treated as confidential is made in large
measure by the person themselves, the law has attempted to clarify
exactly where an obligation to maintain confidentiality exists.
For information to be treated as confidential it must not have
entered the public domain and become common knowledge. Medical
information such as medical history and treatment information
has always been considered to have the necessary quality of
confidence.

Case example
In X v Y [1988] 2 All ER 648, the court prevented a newspaper
from publishing the identities of two doctors who were infected

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with HIV/AIDS, on the grounds that the information was

confidential. The court also found that there was no overriding
public interest in making the doctors’ identities public: see [16.3.4].

If the medical information has been anonymised there will be

no breach if the information is published (R v Dept of Health; Ex
parte Source Informatics Ltd [2000] 1 All ER 786). The court will
judge whether information has been sufficiently anonymised (Local
Authority v Health Authority (disclosure: restriction on publication)
[2004] 1 All ER 480).

[16.3.3] What circumstances will impose a duty of confidence?

Professional relationships such as those between health professionals
and patients impose a duty of confidence. This duty may also represent
an aspect of the fiduciary duties owed by health professionals:
see [5.3.2]. They can also be imposed by legislation such as the
Queensland Health Services Act 1991, which imposes duties of
confidence on employees of public health services (ss 60–62).
Health professionals may also owe obligations of confidence to
one another arising out of their business arrangements. For example,
partners and employees in medical practices are obliged to keep
information pertaining to those businesses confidential, even after
they leave.
Third parties who receive confidential information may also be
bound by duties of confidence, particularly when they know that
the information is confidential and should not have come into their
possession. The same rule applies to anyone who steals confidential
information. Finders of confidential information that has been lost,
such as lost patient files, may also be bound to keep the information
confidential when they realise its nature.

[16.3.4] Are there situations where I can break confidence? Yes.

Equity recognises a number of defences to a claim of breach of con-
fidence. The two that are relevant to health professionals are:
• the public interest defence, where it is argued that the
disclosure is justified to protect the public, and
• the forced disclosure defence, where the health professional
is obliged by law to disclose information. For example,
public health statutes often require the reporting of infectious
diseases, and may provide for the disclosure of infected

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persons’ names and addresses. Legal compulsion also occurs

when evidence is subpoenaed by courts. Health professionals
cannot claim privilege against providing such information.
Information can also be disclosed with the express or implied consent
of the patient (such as where the sharing of information between
medical specialists is required for the patient’s care).

Case example
W v Edgell [1990] 1 All ER 835 concerned a doctor employed
to provide a psychiatric assessment of an inpatient who had
killed five people. The report was originally sought to secure
the patient’s release, but the findings were so adverse that the
application was not pursued, and the report was not used.
At the doctor’s direction a copy of his report was forwarded
to the Secretary for State. In assessing whether this breach
of confidence was excusable, the Court of Appeal found that
the public interest in disclosing the report to the authorities
outweighed the public interest in the patient’s confidentiality, given
the serious concerns for public safety.

Similar defences are recognised in the privacy laws discussed

in [16.4.1]–[16.4.12]

16.4 Privacy
[16.4.1] Are there rights to privacy? Australian common law, unlike
that in the US, never developed a separate tort of privacy. Some rights
of privacy were protected through the torts of trespass or nuisance,
or the law concerning confidential information: see [16.3.1–16.3.4].
However, if someone had a privacy claim that did not fit into these
traditional torts and was not a breach of confidence, the law could
not respond to it.
As a solution to this problem, the Commonwealth government
enacted the Privacy Act 1988. Originally the Act only applied to
information held by the federal government and its agencies. In 2001
its operation was extended to the private sector, including private
health service providers.
Some state governments have enacted similar legislation to cover
themselves and their agencies, while the ACT, New South Wales and
Victoria have all enacted privacy legislation that relates specifically
to health information.
These laws and their coverage are outlined in table 16.4.1.

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TABLE 16.4.1 Privacy law: legislation and coverage

Cth Privacy Act 1988 federal public sector, private
sector
ACT Health Records (Privacy & ACT public sector, private
Access) Act 1997 (NB the sector
Privacy Act 1988 (Cth) applies
in the ACT)
NSW Privacy & Personal
Information Protection Act
1998
Health Records & Information NSW public sector
Privacy Act 2002 NSW public and private sector
– see www.lawlink.nsw.gov.au/
lawlink/privacynsw/ll_pnsw.nsf/
pages/PNSW_03_hripact#4b.
There are also 4 statutory
guidelines under the Act which
are legally binding:
• use or disclosure of
health information for the
management of health
services
• use or disclosure of health
information for training
purposes
• use or disclosure of health
information for research
purposes
• notification when collecting
health information about a
person from someone
else.
NT Information Act 2002 NT public sector
Qld No legislation but the Qld public sector
Queensland government has
adopted a policy of complying
with the federal Privacy Act.
State Government Standards
42 (Information Privacy, Sept
2001) & 42A (Information
Privacy for the Qld Dept of
Health, Sept 2001)
SA No law but Code of Fair Public sector including South
Information Practice based on Australian Department of Health
the federal National Privacy
Principles
=
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= TABLE 16.4.1 Privacy law: legislation and coverage

Tas Personal Information & Tasmanian public sector and
Protection Act 2004 University of Tasmania
Vic Information Privacy Act 2000 Victorian public sector (does
not apply to health information)
Health Records Act 2001 both public and private sectors
WA No law or administrative WA public sector
regulation although a privacy
Act is currently being
proposed. See Office of the
Attorney General for Western
Australia, Privacy Legislation
for Western Australia
Discussion Paper (2003)

[16.4.2] How does privacy legislation work? The federal Act applies
11 information privacy principles (IPPs) to information held by the
federal government, and 10 national privacy principles (NPPs), found
in Schedule 3 of the Act, which apply to the private sector. These
principles are concerned with the collection of, access to and storage
of data, and the provision of information to third parties.
Private sector organisations may also create their own privacy
codes, which can be taken to the Privacy Commissioner for approval.
Approved codes are binding on the organisation instead of the NPPs.
This is referred to as a co-regulatory approach.
The laws in other jurisdictions work in a similar fashion.
The authorities with powers over health information are listed
in table 16.4.2.

TABLE 16.4.2 Privacy authorities with health privacy laws

Cth Privacy Commissioner www.privacy.gov.au
ACT Human Rights Commission www.hro.act.gov.au/index.html
NSW Privacy Commissioner www.lawlink.nsw.gov.au
Vic Health Services Commissioner www.health.vic.gov.au/hsc/

[16.4.3] Which privacy laws apply to health professionals? Health

professionals working for the federal government or its agencies
must comply with the federal laws. Health professionals working
for state and territory governments or their agencies must comply
with the law of the jurisdiction in which they work.

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Health professionals working in private practice must comply

with the federal law. In the ACT, New South Wales and Victoria
they are also required to comply with the health information laws
of those jurisdictions.
For health professionals who work in both private and public
areas, the law that applies is determined by where records are stored.
If they are stored in the public facility, the privacy laws governing
that facility will apply. If they are taken and stored by the private
practitioner, the applicable privacy law is that governing private
practitioners.
If there is a conflict between an applicable federal law and the
law of another jurisdiction, the federal law is superior and must be
followed: see [3.1.1].

[16.4.4] What types of health information are covered by privacy

legislation? Various definitions of ‘health information’ and ‘medical
records’ are discussed at [17.1.1].
The legislative privacy regimes apply to all types of health
information. In federal law health information is treated as being
‘sensitive information’, and is subject to greater controls.

[16.4.5] What controls are placed on the collection of health

information? The general principle is that health information can
only be collected with the consent of the patient. Only information
necessary for the provision of the health service should be collected,
and the patient should be informed about how the health professional
will handle the information. Patients may request a copy of a medical
practice’s privacy policies and procedures.

[16.4.6] Is it a breach of privacy to collect family histories from

patients? No. Health information should generally be collected
from the patients themselves, but taking health information from a
patient about their family’s medical history is exempted from this
restriction under federal law, in New South Wales and in Victoria
(see table 16.4.6).

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TABLE 16.4.6 Family history exemptions

Cth Public Interest Determinations 9 www.privacy.gov.au/health/
& 9A determinations/index.html
NSW Statutory guidelines on notifying www.lawlink.nsw.gov.au/
a person when health information lawlink/privacynsw/ll_pnsw.
about them has been collected nsf/pages/PNSW_03_
from someone else hripact#4b
Vic Health Records Regulations 2002
r8

[16.4.7] Who can have access to health information? Patients’

rights to access health information are discussed at [17.3.2]. This is
not a right of ownership, but one that springs from the privacy laws.
The situations in which a record-holder can refuse a patient access
to a medical record are discussed at [17.3.3].
Other people can access health information when they have the
patient’s consent. These include different health service providers
who require access to the patient’s records: see [17.3.3].
Patient’s can also demand that mistakes and errors in the records
be corrected: see [17.2.3].

[16.4.8] How does privacy legislation affect the use and disclosure
of health information? Generally speaking, the use of private
information is limited to what the patient consented to. Privacy laws
differentiate between the primary purpose for use and disclosure
(the dominant reason for the patient consenting to provide the
information) and secondary purposes (other reasons for providing
the information).
Use or disclosure of the information is permissible if the use
or disclosure is related to the primary purpose; for example, the
sharing of health records between members of a treatment team for
the provision of a treatment that the patient has consented to.
Use or disclosure for a secondary purpose is also permitted, but
only when it directly relates to the primary purpose. For example, the
use of personal information to send an invoice for treatment may not
have been consented to directly by the patient, but it is sufficiently
related to the primary purpose (treatment) for the information to be
used in that way.

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 Confidential information and privacy [16.4.9]

[16.4.9] Is it possible to collect, use and disclose health information

without consent? Yes, but only in limited circumstances. The privacy
regimes dealing with health information recognise the exceptions
discussed below.

Where the health professional is legally obliged to collect, access

or use the health information
There are many laws requiring health information to be collected and
reported, such as public health laws, or laws requiring compliance
with subpoenas during litigation.

Where the collection, use or disclosure is necessary to reduce or

avoid a serious and imminent threat to life or health, or to public
safety or health.
It is considered that health professionals should be free to break
privacy principles to inform individuals or the general public about
significant dangers to their health. The term ‘imminent threat’
means that harm may otherwise result soon. The federal Privacy
Commissioner has indicated that this would mean days or weeks,
depending on the risk (Office of the federal Privacy Commissioner,
2001).
In the ACT the requirement is not limited to ‘imminent’ threats.
The disclosure must be necessary ‘to prevent or lessen a significant
risk to the life or physical, mental or emotional health of the consumer
or another person’ (Privacy Principle 9).

Where the collection, use or disclosure is required for

management, training or statistical purposes
Health professionals may use health information for management,
training or statistical purposes. However, the laws normally require
the health professional to make a reasonable attempt to de-identify
the data, or, if de-identified information cannot be used, to show that
it is impracticable to seek consent from patients.

Where the collection, use or disclosure is required for research

purposes
The consent of patients is ordinarily required before researchers access
patient records and samples. However, the privacy laws do allow for
access without consent if approval is given for such access by an
ethics committee, properly constituted under the National Health

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[16.4.10] The Australian Medico–Legal Handbook

and Medical Research Council Act 1992. Generally speaking, ethics

committees can only give approval if:
• seeking the consent of patients is impractical, and
• the public benefit in allowing the research outweighs the
public benefit in the maintenance of privacy.
Each jurisdiction has requirements for the type of information that
must be provided to an ethics committee in its assessment. The
specific policy requirements are contained in table 16.4.9.

TABLE 16.4.9 Policies concerning the use of health

information in research
Cth Guidelines under Section 95 of www.privacy.gov.au/health/
the Privacy Act 1988 (dealing with guidelines/index.html
access to data held by federal
agencies); Guidelines under
Section 95A of the Privacy Act
1988 (dealing with access to data
held in the private sector)
NSW Use or disclosure of health www.lawlink.nsw.gov.au/
information for research lawlink/privacynsw/ll_pnsw.
purposes nsf/pages/PNSW_03_
hripact#4b
Vic Statutory guidelines on research www.health.vic.gov.au/hsc/
legislation.htm

Where the collection, use or disclosure is in relation to suspected

unlawful activity
Disclosure of health information is permitted when the health
professional suspects that unlawful activity has been engaged in,
and the information must be disclosed as part of an investigation by
relevant persons or authorities.

[16.4.10] Is it a breach of privacy to tell relatives of adult patients

about the patient’s health status? Yes. Health information should
only be given to relatives with the patient’s consent. Disclosure to
the patient’s substitute decision-maker is permitted if the patient is
incompetent.
There is an exception for disclosure in federal NPP 2.4 for
disclosure to the person responsible for the care of the patient, if
the disclosure:
• is necessary to provide appropriate care or treatment, or

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 Confidential information and privacy [16.4.12]

• is made for compassionate reasons, and

• is not contrary to any wish expressed by the patient.
In the ACT, disclosure to relatives without the consent of the patient
or substitute decision-maker is permissible if the disclosure is not
contrary to any wish expressed by the patient.
New South Wales and Victoria have similar requirements, with
the added requirement that if the immediate family member is under
18, the health professional must reasonably believe that they have
sufficient maturity in the circumstances to receive the information.

[16.4.11] What are the sanctions for breaches of statutory privacy

rights? The federal Privacy Commissioner, and the equivalent
authorities in other jurisdictions, have power to investigate complaints
about privacy. Ordinarily complaints are referred back to the health
service provider, who is given the opportunity to resolve the complaint
with the patient. If the complaint cannot be resolved the matter
will ordinarily be conciliated by the authority, or the authority can
make a determination. Determinations are enforceable through the
courts.

[16.4.12] Do children have rights of privacy? Yes. This is dis-

cussed at [9.6.1].

References and further reading

Kerridge I, Lowe M, & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney, chapter 14
Freckelton I & Petersen K (eds), Disputes and dilemmas in health law
(2006) Federation Press, Sydney, chapters 27–30
McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 7
Office of the Federal Privacy Commissioner, Guidelines on privacy in
the private health sector (2001) www.privacy.gov.au (accessed 25
Oct 2006)
Radan P, Stewart C & Lynch A, Equity and Trusts (2nd edn, 2005)
LexisNexis, Sydney, chapter 16
Skene L, Law and medical practice: rights, duties, claims and
defences (2nd edn, 2004) LexisNexis, Sydney, chapter 9

Cases
Coco v A N Clark (Engineers) Ltd [1969] RPC 41

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[16.4.12] The Australian Medico–Legal Handbook

Local Authority v Health Authority (disclosure: restriction on

publication) [2004] 1 All ER 480
R v Dept of Health; Ex parte Source Informatics Ltd [2000] 1 All ER
786
X v Y [1988] 2 All ER 648
W v Edgell [1990] 1 All ER 835

264
 CHAPTER 17

Medical records and health

information
17.1 Definitions
[17.1.1] What is a ‘medical record’ or ‘health information’?
Medical records and health information are general terms referring
to a variety of data and reports about patients. In New South Wales,
the Northern Territory, Tasmania and Victoria the definition of ‘health
information’ is determined by legislation (see table 17.1.1).
The definitions of health information in these jurisdictions are
very similar. For example, in New South Wales ‘health information’
is defined as:
(a) personal information that is information or an opinion about:
(i) the physical or mental health or a disability (at any time) of an
individual, or
(ii) an individual’s express wishes about the future provision of health
services to him or her, or
(iii) a health service provided, or to be provided, to an individual, or
(b) other personal information collected to provide, or in providing, a health
service, or
(c) other personal information about an individual collected
in connection with the donation, or intended donation, of an individual’s
body parts, organs or body substances, or
(d) other personal information that is genetic information about an
individual arising from a health service provided to the individual in a
form that is or could be predictive of the health (at any time) of the
individual or of any sibling, relative or descendant of the individual, but
does not include health information, or a class of health information or
health information contained in a class of documents, that is prescribed
as exempt health information for the purposes of this Act generally or
for the purposes of specified provisions of this Act.

In the ACT a ‘health record’ is defined broadly by the Health Records

(Privacy and Access) Act 1997 to mean any record, or any part of
a record, either:

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• held by a health service provider and containing personal

information, or
• containing personal health information.
‘Personal health information’ is defined to be any personal informa-
tion, whether or not recorded in a health record, either:
• relating to the health, an illness or a disability of the consumer,
or
• collected by a health provider in relation to the health, an
illness or a disability of the consumer.
In Queensland the definition of ‘health records’ is given in s 259 of
the Medical Practitioners Registration Act 2001 to mean:

documents, recording the health history, condition and treatment of

users of the professional services provided by a person, made in the
course of the person’s practice of the profession.

The other states and territories have not defined these terms.

TABLE 17.1.1 Legislation defining ‘health records’

NSW Health Records & Information Privacy Act 2002
NT Information Act
Tas Personal Information Protection Act 2004
Vic Health Records Act 2001

[17.1.2] What laws apply to medical records and health infor-

mation? The common law rules of confidentiality apply to
medical records and health information. These are discussed in
chapter 16.
In addition to common law, there are now a number of legislative
regimes around Australia that may apply to medical records and
health information (see table 17.1.2). For a useful summary of
these laws see the federal Privacy Commissioner’s website (www.
privacy.gov.au).

17.2 Contents of medical records

[17.2.1] When should I make a medical record? A record must be
made contemporaneously with the provision of the medical treatment
or other medical service, or as soon as practicable afterwards. Medical
records should include enough accurate information (including

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 Medical records and health information [17.2.1]

statements of fact or statements of clinical judgment) to ensure

good patient care.

TABLE 17.1.2 Health records: legislation and application

Cth Freedom of provides for access to records held by
Information Act 1982 federal health facilities
Privacy Act 1988 covers both federal public bodies
and the private sector – federally run
public health providers are subject
to Information Privacy Principles
(IPPs); private sector health service
providers are subject to National Privacy
Principles (NPPs)
ACT Freedom of ACT public sector agencies
Information Act 1989
Health Records ACT public sector health agencies and
(Privacy & Access) private health service providers
Act 1997
NSW Freedom of NSW public sector agencies
Information Act 1989
Health Records & NSW public sector health agencies and
Information Privacy private health service providers
Act 2002
NT Information Act 2004 NT public sector agencies
Qld Freedom of Qld public sector agencies
Information Act 1992
SA Freedom of SA public sector agencies
Information Act 1991
Tas Freedom of Tas public sector agencies
Information Act 1991
Personal Information Tas government agencies (including
Protection Act 2004 local governments) and the University of
Tasmania
Vic Freedom of Vic public sector agencies
Information Act 1982
Health Records Act Vic public sector agencies and private
2001 health service providers not covered by
the federal Act
WA Freedom of WA public sector agencies
Information Act 1992

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In New South Wales r 6 of the Medical Practice Regulation 2004

states that:
(1) A record must be made contemporaneously with the provision
!
of the medical treatment or other medical service or as soon
as practicable afterwards.
(2) This clause may be complied with by the making of further
entries in a single record that relates to the patient concerned.

[17.2.2] What information should be included in medical records?

As a guide, a medical record must include sufficient information
concerning the patient’s case to allow another doctor to continue
management of the case.

In some jurisdictions the content of medical records is regulated

by legislation or subordinate legislation. For example, Sch 2 in the
New South Wales Medical Practice Regulation 2004 states that:
!
(1) A record must contain sufficient information to identify the
patient to whom it relates.
(2) A record must include:
(a) any information known to the registered medical
practitioner who provides the medical treatment or other
medical services to the patient that is relevant to his or
her diagnosis or treatment (for example, information
concerning the patient’s medical history, the results of
any physical examination of the patient, information
obtained concerning the patient’s mental state, the results
of any tests performed on the patient and information
concerning allergies or other factors that may require
special consideration when treating the patient), and
(b) particulars of any clinical opinion reached by the
registered medical practitioner, and
(c) any plan of treatment for the patient, and
(d) particulars of any medication prescribed for the patient.
(3) The record must include notes as to information or advice
given to the patient in relation to any medical treatment
proposed by the registered medical practitioner who is treating
the patient.
(4) A record must include the following particulars of any medical
treatment (including any medical or surgical procedure) that is
given to or performed on the patient by the registered medical
practitioner who is treating the patient:
(a) the date of the treatment,
(b) the nature of the treatment,
c) the name of any person who gave or performed the
treatment,

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 Medical records and health information [17.2.3]

((d) the type of anaesthetic given to the patient (if any),

(e) the tissues (if any) sent to pathology,
(f) the results or findings made in relation to the treatment.
(5) Any written consent given by a patient to any medical treatment
(including any medical or surgical procedure) proposed by the
registered medical practitioner who treats the patient must be
kept as part of the record relating to that patient.

[17.2.3] What if there is a mistake in the record? There is a

general duty of care to make sure information in medical records
is clear, concise, unbiased, legible, objective, accurate and free of
abbreviations (other than those widely accepted by the profession).
There is statutory recognition of this common law duty to be
‘accurate, complete and up-to-date’ in the legislation set out in
table 17.2.2A.
If a mistake is discovered, you must not alter the record, or cause
or permit another person to alter it, in such a way as to obliterate,
obscure or render illegible information already contained in it.
If additional material is added to the record, it should be clearly
marked as such.
Patients and their representatives also have a right to request
that any errors in medical reports be amended. If the person holding
the record refuses to make the change, they must keep a copy
of the patient’s (or representative’s) request. Patients and their
representatives can ordinarily lodge an appeal against a decision to
refuse to amend a medical record (see table 17.2.2B).

TABLE 17.2.2A Mistakes and inaccuracies in records:

legislation and relevant principles
Cth Privacy Act 1988 Information Privacy Principle 3
National Privacy Principle 3
ACT Health Records (Privacy & Principle 3
Access) Act 1997 Principle 8
NSW Health Records & Information Principle 2
Privacy Act 2002 Principle 9
NT Information Act Principle 3
Tas Personal Information Principle 3
Protection Act 2004
Vic Health Records Act 2001 Principle 3

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TABLE 17.2.2B Powers to amend records: legislation and

relevant principles
Cth Privacy Act 1988 Information Privacy
Principle 7
National Privacy Principle 6
ACT Health Records (Privacy & Principle 7
Access) Act 1997
NSW Health Records & Information ss 33–35
Privacy Act 2002 Principle 8
NT Information Act Principle 6
Tas Personal Information Protection Principle 3
Act 2004
Vic Health Records Act 2001 Principle 3

17.3 Ownership, control and access

[17.3.1] Who owns medical records? Generally the records are
owned by the medical practitioner who prepares them, not by the
patient. If the medical practitioner is an employee (for example, in
a hospital), the employer owns the record.
Where practitioners are in a joint practice or partnership, or where
premises are shared, the ownership of records may be unclear. In
such cases ownership often depends on the contractual relationship
between the parties (such as a partnership agreement).
Patients do not own medical records, except, perhaps, reports
that have been ordered by the doctor for the patient and paid for by
the patient (for example, X-rays).

Case example
In Breen v Williams, Ms Breen claimed to have a right to access
her medical records. She wanted to take part in a class action
in America against the manufacturer of silicon breast implants. A
condition of her joining in the class action was that she provide
copies of her medical records. Dr Williams had access to some
of these records because he had treated her for breast pain
associated with her implants. He was not responsible for the
implantation. Dr Williams agreed to supply Ms Breen with a report
based on the records, or to provide the records as long as he was
given an indemnity from any claim in negligence. Ms Breen would
not accept these terms.
Ms Breen went to court arguing that she had a right to the
records because:
• there was an implied term in her contract with Dr Williams that

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 Medical records and health information [17.3.2]

he would give her access to the records of her treatment

• she had a property interest in the records, and
• there was a fiduciary relationship (see [5.3.2]) between
doctors and patients that required doctors to give patients
their medical records.
The High Court of Australia dismissed all three claims. While the
court recognised an implied term in medical contracts that doctors
would act with reasonable care and skill, that did not extend to
the provision of access to medical records. Nor would the court
recognise that the doctor’s records belonged to Ms Breen. Finally,
they refused to impose a fiduciary relationship on all doctor–patient
relationships. Some health relationships may give rise to fiduciary
duties, but a blanket imposition would not be appropriate.

While records technically belong to the hospital or health professional,

the information contained in the record ‘belongs’ to the patient. In
other words, this information is subject to the duty to confidentiality:
see chapter 16. Thus, if a patient requests that sensitive information,
such as HIV status or psychiatric history, be excluded from the record,
the standard of care demands that the doctor negotiate with the patient
on the matter, and if they choose to exclude such information from
the record, at least record that information has been excluded at the
patient’s request.

[17.3.2] Can a patient demand to see their medical record even

though they do not own it? While patients may not have common
law rights to access their records, they can exercise a right to access
medical records held by public sector agencies by using federal, state
and territory freedom of information legislation.
There are also legislative schemes that deal specifically with
access to public and private health records, and that give patients a
right of access (see table 17.3.2).
Requests must normally be made in writing. In the ACT requests
can be made orally, unless the request is made by a guardian or by
the representative of a dead person. Record-keepers in the ACT can
also require that requests be in writing.
Requests should state:
• the patient’s name and address
• the health record being sought
• the kind of access sought.
It is possible to charge a fee for providing the record, although a
maximum fee is often set by governments.

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TABLE 17.3.2 Rights of access to information: legislation and

relevant principles
Cth Privacy Act 1988 Information Privacy Principle 6
National Privacy Principle 6
ACT Health Records (Privacy & Part 3, in particular ss 10–13
Access) Act 1997
NSW Health Records & Part 5, Div 3, particularly ss
Information Privacy Act 2002 26–32
Principle 7
NT Information Act Principle 6
Tas Personal Information Principle 6
Protection Act 2004
Vic Health Records Act 2001 Principle 6

[17.3.3] When can a record holder refuse access to a medical

record? The legislative regimes recognise a number of situations
in which it is lawful to refuse to grant access to a patient. These
include situations where:
• the record, or a relevant part of the record, is not in the alleged
record-holder’s possession
• providing the record would breach some other law, or a court
order
• providing the record would pose a serious risk to the life or
physical, mental or psychological health of the patient or
another person
• providing the record would breach some overriding obligation
of confidence; for example, legal professional privilege
• providing the record would have an unreasonable impact on
the privacy of other people.

[17.3.4] Can people apart from the patient and members of their
treatment team access their medical record? When a patient is
treated by a range of service providers in different health settings (such
as a general practitioner and a hospital), information about the patient
is often transferred between them. While communication between
service providers may optimise patient care, in general transfer
of information requires the patient’s consent. (In some situations,
such as in medical emergencies, consent may not be practicable or
appropriate. Medical practitioners should make a clinical judgment
about whether this is the case.)

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 Medical records and health information [17.4.1]

A number of statutory authorities have specific powers that

allow authorised officers access to medical records. These include
the Health Insurance Commission and the Department of Veterans’
Affairs. A court can also issue a subpoena for the production of
medical records.
Guardians and other substitute decision-makers have a right to
access medical records where the patient is not competent to make
decisions. Representatives of a deceased person may also access the
deceased’s medical records.

[17.3.5] What rights do parents have to access children’s medical

records? This is discussed at [9.6.1].

17.4 Storage and destruction

[17.4.1] How long should I keep my medical records? Medical
records are kept for a number of reasons, but are primarily created
and retained for the ongoing care of patients. They may also act as
a record of a doctor’s clinical practice, and could be considered an
asset of the practice.
If a patient ceases to attend the practice, the records should be
retained for at least seven years (or, if the patient is a child, at least
25 years). This period of time is often recommended as that during
which a legal claim may be made against a doctor. Most jurisdictions
have reduced the time within which a claim may be made but, because
an extension of time may be granted by a court for various reasons,
a longer period of retention is usually recommended.
Records of deceased patients should be retained. Deceased
persons, through their representatives, have the same rights of access
and control under state and territory legislation.
In particular fields of specialist practice it may be desirable to
retain medical records for even longer. If a patient has a chronic
disease, it may be important for either a general or a specialist
practitioner to retain records for the patient’s lifetime. In the case of
genetic disease, it may be wise to keep records beyond the patient’s
lifetime. Where a practitioner has a policy of culling records after a
specific interval, it is recommended that the records of such patients
be marked so that they can either:
• be retained in a separate storage system, or
• be offered, if necessary in abridged form, to the patient or their
family for safekeeping.

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[17.4.2] How should I store medical records? Records should be

stored in such a way as to protect them against loss, unauthorised
access, unauthorised use, inappropriate modification or inadvertent
disclosure. This duty is recognised in all statutory regimes. The duty
applies to both paper and digital records.

[17.4.3] How should records be destroyed? The confidentiality of

the contents of medical records is of fundamental importance to the
doctor–patient relationship. When medical records (whether stored
as hard copy or in electronic media) are no longer required, they
should be destroyed by means that will ensure that no identifiable
contents are retrievable. Conventional incineration or shredding may
not achieve this purpose.
The medical practitioner’s responsibility for maintaining the
confidentiality of a medical record’s physical contents ceases only
at the time of the record’s destruction. Practitioners should therefore
either personally oversee the destruction of their medical records, or
contract for such destruction with a reliable operator.

References and further reading

New South Wales Law Reform Commission, Issues Paper 24: Minors’
consent to medical treatment (2004) NSWLRC, Sydney, Part 9
McIlwraith J & Madden, B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 7
Skene L, Law and medical practice: rights, duties claims and
defences (2nd edn, 2004) LexisNexis, Sydney, chapter 8

Cases
Breen v Williams (1996) 186 CLR 71

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 CHAPTER 18

Drugs and prescribing

18.1 Regulation of drugs
[18.1.1] What laws govern the use of drugs in the Australian
healthcare context? All Australian jurisdictions have legislation
regulating the prescription, supply and storage of drugs and poisons.
The requirements are similar in each jurisdiction, although they may
vary in detail. The following discussion is of general application.
You should note the specific requirements of the jurisdiction in
which you practise.
Federal laws dealing with the quality, testing, manufacture,
importing, exporting and labelling of drugs, and the licensing of
manufacturers, are:
• the Customs Act 1901
• the Therapeutic Goods Act 1989
• the Narcotic Drugs Act 1967.
State and territory laws cover, amongst other things, possession,
sale, dispensing, storage, and illicit drug use. The relevant laws are
listed in table 18.1.1.

TABLE 18.1.1 Legislation on prescribing

ACT Drugs of Dependence Act 1989; Drugs of Dependence
Regulation 2005; Poisons Act 1933; Poisons Regulation 1933;
Poisons & Drugs Act 1978; Poisons & Drugs Regulation 1993
NSW Poisons & Therapeutic Goods Act 1966; Poisons & Therapeutic
Goods Regulation 2002
NT Poisons & Dangerous Drugs Act 1983; Poisons & Dangerous
Drugs Regulations 2004
Qld Health Act 1937; Health Regulation 1996; Health (Drugs &
Poisons) Regulations 1996
SA Controlled Substances Act 1984; Controlled Substances
(Poisons) Regulations 1996; Controlled Substances (Prohibited
Substances) Regulations 2000; Drugs Act 1908
=
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= TABLE 18.1.1 Legislation on prescribing

tas Poisons Act 1971; Poisons Regulations 2002; Poisons List Order
2001
Vic Drugs, Poisons & Controlled Substances Act 1981; Drugs,
Poisons & Controlled Substances Regulations 1995; Therapeutic
Goods (Victoria) Act 1994
WA Poisons Act 1964; Poisons Regulations 1965

[18.1.2] What are drug schedules? Drugs and poisons are classified
into schedules according to their purpose, potential for abuse, safety
in use, and need. There are levels of control applied to each schedule,
with progressively stricter requirements for supply, storage, labelling,
recording and keeping of records.
Each state and territory has it own schedule of drugs and poisons,
but the National Drugs and Poisons Committee attempts to maintain
uniformity through the Standard for the Uniform Scheduling of Drugs
and Poisons (www.tga.gov.au/ndpsc/susdp.htm).
The following is an example from the New South Wales poisons
list found in s 8 of the Poisons and Therapeutic Goods Act 1966.

Schedule One
Substances which are of such extreme danger to life as to warrant
their being supplied only by medical practitioners, nurse practitioners
authorised under section 17A, midwife practitioners authorised under
that section, pharmacists, dentists, veterinary surgeons or persons
licensed under Part 3.

Schedule Two
Substances which are dangerous to life if misused or carelessly
handled, but which should be available to the public for therapeutic
use or other purposes without undue restriction.

Schedule Three
Substances which are for therapeutic use and:
(i) about which personal advice may be required by the user in respect
of their dosage, frequency of administration and general toxicity,
(ii) with which excessive unsupervised medication is unlikely, or
(iii) which may be required for use urgently so that their supply only
on the prescription of a medical practitioner or veterinary surgeon
would be likely to cause hardship.

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Schedule Four
Substances which in the public interest should be supplied only upon
the written prescription of a medical practitioner, nurse practitioner
authorised to prescribe the substance under section 17A, midwife
practitioner authorised to prescribe the substance under that section,
dentist, optometrist authorised to prescribe the substance under section
17B or veterinary surgeon

Schedule Five
Poisonous substances of a dangerous nature commonly used for
domestic purposes which should be readily available to the public
but which require caution in their handling, use and storage.

Schedule Six
Substances which should be readily available to the public for
agricultural, pastoral, horticultural, veterinary, photographic or
industrial purposes or for the destruction of pests.

Schedule Seven
Substances of exceptional danger which require special precautions
in their manufacture or use.

Schedule Eight
Substances which are addiction producing or potentially addiction
producing.

[18.1.3] Which scheduled drugs require prescriptions? Drugs

in Schedules 4 and 8 require prescriptions. These are discussed at
[18.2.1]–[18.4.3].

18.2 Writing a prescription

[18.2.1] Where should I store the prescription stationery? In
general, all prescription stationery should be securely stored out of
sight and in a place where it is accessible only to authorised persons,
to minimise the possibility of its being stolen for fraudulent use.

[18.2.2] What details should be printed on the stationery? The

doctor’s name, address and telephone number should always be
clearly shown on the prescription to enable the pharmacist to contact
the doctor before dispensing the drug, if necessary.

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[18.2.3] What do I write on the prescription? The date the pre-

scription is written must be specified. Prescriptions must not be post-
dated. If it is intended that the prescription not be dispensed until a
later date, that should be endorsed on the prescription.
Full particulars of the drug to be supplied must be shown, including
a statement of the quantity to be supplied and, if the prescription is to
be supplied more than once, the number of times it may be repeated.
In the case of Schedule 8 drugs (drugs of addiction) the statement
of quantity to be supplied is to be in words and figures and, if the
prescription is to be supplied more than once, the number of times it
may be repeated is also to be written in words and figures, to prevent
fraudulent alteration.
Directions for the precise dose or use and frequency of
administration should be given, except where:
• because of the complexity of the dosage regimen or use, it is
impracticable to do so and the doctor has given the patient
separate written instructions, or
• the substance is to be administered by a doctor or nurse.
The legibility of the prescription, including the doctor’s signature,
is important. A pharmacist cannot legally dispense a prescription
if they are uncertain of the exact drugs being prescribed and/or the
directions for their administration.
There should be no space between the last item on the prescription
and the doctor’s signature, to prevent the possibility of another
drug being added. A large ‘Z’ should be drawn at the bottom of all
prescriptions so that further items cannot be added.
A doctor must not knowingly include on the prescription any
particular that is false or misleading; for example, by post-dating or
including drugs intended for another patient.

18.3 Computer-generated prescriptions

[18.3.1] What are the criteria for computer-generated prescrip-
tions? Doctors may issue computer-generated prescriptions provided
they meet specific criteria.
• The computer program must only enable authorised doctors to
access the prescription printing module.
• The prescription must be printed with either the prescriber’s
name, address and contact telephone number or the address
and contact telephone number of the practice, being
personalised to the prescriber by the addition at the time of

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printing of the prescriber’s name below the last prescribed

item.
• The prescriber must sign the prescription form beneath and
as near as practicable to the last item prescribed on the form,
in their own handwriting. The prescription must not be pre-
signed.
• The total number of items on the prescription must be stated
on the prescription, or the area on the prescription below the
prescriber’s signature must be scored, hatched or otherwise
marked in some way to prevent any other item being printed in
that area.
• The particulars of any prescription issued must be included in
the clinical or medication record of the patient for whom the
prescription was generated.
• Alterations must not be made to printed prescriptions. Where
alteration is required a new prescription should be generated,
and the first prescription immediately destroyed.

18.4 Drugs of dependence (Schedule 8)

[18.4.1] When can I administer or prescribe a drug of dependence?
Generally speaking, a doctor must not administer or prescribe a drug
of dependence to or for any person unless:
• that drug is for the medical treatment of a person under their
care, and
• they have taken all reasonable steps to ascertain that person’s
identity, and
• they have taken all reasonable steps to ensure that there is a
therapeutic need for the drug, and
• the patient is not drug-dependent
• the patient has not used a drug of dependence, continuously or
collectively, for longer than two months.
Schedule 8 drugs cannot generally be supplied for longer than two
months (60 days in Western Australia). Some jurisdictions allow
prescriptions to be given for longer than two months with the approval
of the health department or chief medical officer.
A doctor who does not have access to the patient’s history must,
to comply with these requirements:
• be satisfied that the need is genuine by history and physical
examination
• be satisfied that there are no signs suggestive of drug

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dependence, such as pupillary size or injection marks

• attempt to independently verify details of the history given by
the patient for requiring the drug directly with the purported
previous prescribers.
Table 18.4.1 sets out the relevant legislation.
A doctor must not administer or prescribe a drug merely for the
purpose of supporting a patient’s drug dependence.

TABLE 18.4.1 Legislation concerning the prescribing of drugs

of dependence
ACT Drugs of Dependence Act 1989 ss 58–61
NSW Poisons & Therapeutic Goods Act 1966 ss 27–30B
NT Poisons & Dangerous Drugs Act 1983 s 34
Qld Health (Drugs & Poisons) Regulations 1996 Pt 9
SA Controlled Substances Act 1984 s 33
Tas Poisons Regulations 2002 rr 10–13
Vic Drugs, Poisons & Controlled Substances Act 1981 Pt 2 Div 10
WA Poisons Regulation 1966 Pt 6

[18.4.2] What precautions should I take when prescribing drugs

of addiction? A doctor must always be cautious when prescribing
drugs of dependence, including the benzodiazepines. Many drug-
dependent people are quite manipulative, and may attempt to deceive
the doctor with forged legal documents, letters and appointment
cards, or may present X-rays or copies of dispensed prescriptions
and/or empty medication bottles in an effort to obtain a drug. They
may specify one or more drugs by name, and suggest a dose. Others
may claim that they have just arrived from interstate, and present
elaborate stories that are hard to verify.
Whenever possible, the doctor must attempt to authenticate the
histories and documents presented by contacting the doctor, clinic
or hospital cited by the patient. This may sometimes require contact
with the local drugs of dependence unit or equivalent body, which
carry records of drug-dependent patients, previously used aliases
and so on.
When prescribing a drug of addiction, the doctor should prescribe
one item per prescription and for this item give the exact dose, schedule
and amount dispensed, in numbers and in words.

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[18.4.3] What form should the prescription take? All jurisdictions

require that a high level of detail be recorded on the prescription.
For example, s 77 of the Poisons and Therapeutic Goods Regulation
2002 (NSW) requires the following:

(a) the date on which the prescription is issued,

(b) the name and address of the patient or (if the treatment is for an
animal) the species of animal and the name and address of the
animal’s owner,
(c) the name, strength and quantity (expressed in both words and
figures) of the drug to be supplied,
(d) adequate directions for use,
(e) the maximum number of times the drug may be supplied on the
prescription,
(f) the intervals at which the drug may be supplied on the prescrip-
tion,
(g) if the prescription is issued at a hospital, the name and designation
of the person by whom it is issued and the name, address and
telephone number of the hospital,
(h) if the prescription is issued elsewhere than at a hospital, the
name and designation of the person by whom it is issued and
the address and telephone number of the premises at which it is
issued.

18.5 Storage of Schedule 4 and 8 drugs

[18.5.1] How should Schedule 4 and 8 drugs be stored? Schedule
4 drugs must be stored in a lockable storage facility to which only
the doctor has access.
Schedule 8 drugs must be stored in a facility providing no less
security than a steel drugs cabinet. Other drugs of dependence may
also be stored in the facility.
Storage facilities for Schedules 4 and 8 drugs must be kept locked
except when necessary to carry out an essential operation connected
with them. When a doctor has to transport Schedule 8 drugs to use
in another place, such as another surgery or on a house call, they
must be kept in a locked facility, such as a doctor’s bag, secured to
prevent unauthorised access.

18.6 Off-label use

[18.6.1] Is it legal to prescribe a drug ‘off-label’? The term ‘off-

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label use’ applies to prescriptions of a registered medicine for a

use that is not included in the prescribing information or that is
disclaimed in the approved information. This includes use outside
government-approved indication, dosage, age and route. The term
does not refer to the conditions (if any) imposed on prescription
under the Pharmaceutical Benefits Scheme.
Off-label use of medicines is extensive. It does not appear to
be in breach of the Therapeutic Goods Act 1989 (Cth) (where the
prescription and administration was not authorised or carried out
by a ‘sponsor’ of the medicine), and the practice is valid where it is
supported by acceptable quality data.

[18.6.2] Do I have to tell the patient that their drug is ‘off-

label’? No overall answer can be given to this question. Any advice
will depend on the circumstances of the particular case. Given
the widespread use of off-label medicines, it may well be that the
information will not be material to most patients. There are some
situations, however – for example, where the proposed off-label use
is not well known, is unusual or is a ‘last resort’ measure – where
such information should be given to the patient. This will be a matter
of judgment, especially if the doctor knows something about the
patient that suggests they may attach some significance to the fact
that a medicine is being prescribed or administered for an off-label
indication.
The fact that a medicine is being prescribed or administered
off-label may not as such be significant to most patients, but any
inherent risk may still be significant to the patient, and appropriate
information must be given.

18.7 Prescribing drugs for oneself or for one’s

family
[18.7.1] Are there ethical or professional problems with prescrib-
ing drugs for myself or my family? It is not advisable for medical
practitioners to initiate treatment (including prescribing) for
themselves or immediate family members. In these circumstances
the treatment of family members may be adversely affected by one
or more of the factors listed below.
• Professional objectivity may be compromised and judgment
influenced by the nature of the doctor’s relationship with the
patient.

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 Drugs and prescribing [18.7.2]

• The doctor may fail to explore sensitive areas when taking

a medical history, or to perform an appropriate physical
examination.
• The patient may feel uncomfortable disclosing sensitive
information or undergoing a physical examination when the
practitioner is a family member.
• Patient autonomy may be compromised when the practitioner
is a family member.
• The principles of informed consent may not be adhered to
when the doctor is a family member.
In emergency situations or isolated settings where there is no other
help available, a doctor could treat themselves or family members
until another medical practitioner becomes available.
The policies set out in table 18.7.1 have been produced to deal
with these issues.

TABLE 18.7.1 Policies on prescribing for oneself and one’s

family
NSW NSW Medical practitioners treating relatives and self
Medical (www.nswmb.org.au/index.pl?page=69)
Board
NT NT Medical Self-prescription and self-administration of
Board schedule 8 and restricted schedule 4 substances
(www.nt.gov.au/health/healthdev/environ_health/
pdf/padda_self_presc.pdf)
Vic Medical Doctors treating members of their family
Practitioners (medicalboardvic.org.au/content.php?sec=89)
Board Vic Self-prescribing (medicalboardvic.org.au/
content.php?sec=59)

[18.7.2] Are there legal reasons for not self-prescribing? In

some jurisdictions (including the Northern Territory and Victoria)
it is an offence for a doctor to self-prescribe or self-administer any
prescription-only medication. In others (such as New South Wales)
the regulation limits the self-administration of drugs of addiction to
a period not exceeding seven days (where the administration is for
medical treatment). A doctor who is a patient of another doctor may
self-administer medication prescribed by that doctor, to the extent and
for the purpose for which it has been prescribed: see table 18.7.2.

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TABLE 18.7.2 Laws concerning self-prescribing

NSW Poisons & Therapeutic Goods Regulation 2002 r 120
NT Poisons & Dangerous Drugs Act 1983 ss 72–73
Vic Drugs, Poisons & Controlled Substances Regulations 1995
r 47

References and further reading

McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 13
United Medical Protection, Medico-legal handbook (2003) UMP,
Sydney, chapter 1, appendix 1

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 CHAPTER 19

Law enforcement agencies

19.1 Law enforcement agencies
[19.1.1] What organisations and agencies are involved in law
enforcement? This chapter looks at the relationship between
healthcare providers and law enforcement agencies. An example
of the variety of agencies that could be involved is given by s 6(1)
of the Privacy Act 1988 (Cth), which defines enforcement bodies
as:
• the Australian Federal Police
• the Australian Crime Commission
• the Australian Customs Service
• the Australian Prudential Regulation Authority
• the Australian Securities and Investments Commission
• Commonwealth, state and territory agencies responsible
for administering or performing a function under a law that
imposes a penalty or sanction
• Commonwealth, state and territory agencies responsible for
administering a law relating to the protection of public
revenue
• state or territory police services
• the New South Wales Crime Commission
• the Independent Commission Against Corruption of New
South Wales
• the Police Integrity Commission of New South Wales
• the Queensland Crime and Misconduct Commission (formerly
the Criminal Justice Commission of Queensland and the
Queensland Crime Commission)
• state and territory authorities responsible for conducting
criminal investigations or inquiries and prescribed under the
Privacy Act.
This is not a comprehensive list; other organisations may also have
a specific legal authority. If any person or group wishes to rely on

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any right or exemption they should be asked to supply an appropriate

authorisation.
19.2 Giving information about patients to law
enforcement agencies
[19.2.1] When must I provide health information to law enforce-
ment agencies? Ordinarily, a health professional can only provide
health information to a law enforcement agency:
• consensually – that is, with the patient’s permission – or
• under a search warrant, subpoena or other court order.

[19.2.2] What is a search warrant? A search warrant is an order

from a court empowering law enforcement officers to search for and
take possession of evidence. Compliance with a search warrant is
required by law. Healthcare providers are advised that they should
inform their immediate supervisor of any official demand for access
to information as soon as they receive it. They are also advised to
notify their medical indemnity organisation.

[19.2.3] What is a subpoena? A subpoena is a court order requiring

a person or organisation to appear in court and give evidence (in
documentary form, orally or both). Compliance is required by law.
The address, date and time for appearing at court should be noted
when the subpoena is received, and it should be dealt with promptly
by the officer designated to coordinate responses to subpoenas.
Where a client or patient whose health record has been subpoenaed
is not named as a party to the proceedings, they should be notified by
the health service that the subpoena has been received, and advised
of the return date.
A subpoena may be challenged on a number of grounds,
including:
• abuse of process
• oppression (where the terms of the subpoena are excessively
wide and imprecise)
• public interest immunity
• legal professional privilege
• sexual assault communications privilege.
Complex issues and competing interests may arise for a health
provider in deciding how to respond to a subpoena. A health provider
who has concerns about the information requested, or questions

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 Law enforcement agencies [19.2.4]

about how to proceed, should consult their immediate supervisor (if

employed), contact the relevant court or tribunal registry to discuss
the matter, or seek legal advice, which would usually include the
advice of their medical indemnity organisation.
In New South Wales subpoenas are now called court attendance
notices. They have the same legal status as subpoenas.

[19.2.4] Are there other situations where I can provide health

information to law enforcement agencies? Both the common law
of confidentiality and privacy legislation recognise that there are
situations where confidentiality and privacy must be breached to
protect the public interest; that is, where the public interest outweighs
the right of a patient or their family to confidence and privacy: see
[16.3.4].
The federal, state and territory privacy laws allow for the disclosure
of health information to law enforcement agencies in a number of
situations. For example, the federal Privacy Act allows an organisation
to use or disclose personal information when it reasonably believes
this to be necessary for:
• the prevention, detection, investigation, prosecution or
punishment of a criminal offence by an enforcement body
• the enforcement of a law imposing a penalty or a sanction (for
example, fines, or revocation of privileges such as licences or
visas)
• the enforcement of laws that allow law enforcement agencies
to trace the proceeds, benefits and property derived from
criminal activity
• the protection of taxes, levies and charges collected by federal,
state, territory and local governments
• the prevention, detection, investigation or remedying of serious
breaches of standards of conduct associated with a person’s
duties, powers, authority and responsibilities
• the preparation or conduct of proceedings before any court or
tribunal.
If any use or disclosure is made in one of these situations, the
organisation must make a record that includes:
• the date of the use or disclosure
• the personal information used or disclosed
• the relevant enforcement body
• how the information was used or to whom it was disclosed.

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The exemptions in privacy legislation do not oblige health services

to supply information. Health services need to balance the
important public interest in assisting law enforcement agencies to
!
pursue their law enforcement and public protection functions with
their own obligations of confidentiality to their patients and the
sensitive nature of health information.
In many situations the importance of maintaining an
individual’s confidentiality will override the public interest in
disclosing information. Most health providers, including (among
others) psychiatrists and other mental health workers, general
practitioners and counsellors, treat people who at times engage
in some forms of unlawful activity. These people need to be able
to gain access to health services in confidence, particularly for
the treatment of a health problem that is intrinsically linked to their
unlawful behaviour.

[19.2.5] What information can be provided to law enforcement

agencies? The type of information that may be provided varies. It
should relate to an offence that has been or may be committed, and
be ‘reasonably necessary’ to assist the law enforcement agency to
perform its functions.
Generally, the information supplied should be limited to
confirmation of identity and address. The only exception is where the
police can confirm that they are actively investigating the commission
of an offence, and that the information is ‘essential to the execution
of their duty’. In such circumstances additional clinical information
may be provided to the police, having regard to:
• the seriousness of the offence; for example, attempted murder,
assault (including gunshot wound) or domestic violence may
involve serious physical harm
• any risks associated with disclosing the information without
the person’s consent
• the implications of not disclosing the information
• the health provider’s ethical obligations under the relevant
professional code of practice
• whether there is a serious and imminent threat to the health,
life or safety of any person.
If, after considering these matters, the healthcare provider decides to
release certain information to a law enforcement or government author-
ity, the details provided should be limited to what is necessary.

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[19.2.6] How should requests from law enforcement agencies be

handled? Requests for information should:
• be in writing
• identify the requesting officer (in the case of the police, this
should include the officer’s badge number)
• confirm that the officer is a representative of a law
enforcement agency
• give the reason for the request.
Requests should be dealt with by the treating health service provider,
a senior health professional or a health information manager.
Information should not generally be given over the phone, except
in response to a previous written request or where the requesting
officer’s identity can be verified.
The service provider should:
• give only information that is directly relevant to the inquiry
and clearly necessary for the purpose
• document all instances of access in the record, and
• where clinical information is necessary, limit this to a general
outline of the client or patient’s condition and/or injuries.

19.3 Reporting crimes

[19.3.1] Do I have to report a suspected crime? No Australian
jurisdiction except New South Wales has a general statutory require-
ment that doctors report a suspected crime, although they may be
required to report specific offences such as child abuse or domestic
violence: see [19.3.2]–[19.3.3].
There is a common law offence called misprision of felony that
applies to failure to report serious criminal activity. A person is guilty
of the offence if, knowing that a crime has been committed, they fail
to disclose this information to those responsible for the administration
of justice. Doctor–patient confidentiality may provide a reasonable
excuse for non-disclosure for the purpose of misprision of felony.
In New South Wales, s 316 of the Crimes Act 1900 requires a
person to consider whether the information they have will be of
‘material assistance’ to securing the apprehension or conviction of
an offender. If it will, they are obliged to notify police. Failure to do
so could lead to a conviction and the imposition of a penalty of up to
two years’ imprisonment, if there is no ‘reasonable excuse’.
A ‘serious criminal offence’ is defined as an offence attracting
a penalty of five years’ imprisonment or more. Health workers

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should be aware that this covers offences such as drug trafficking,

serious assaults, sexual assaults, murder and manslaughter. It does
not cover minor possession offences, or any offences under public
health legislation.
The regulations under the New South Wales Crimes Act also
provide that a prosecution under this law will not be commenced
without the approval of the Attorney General if the person obtained
the information in the course of practice as:
• a medical practitioner
• a psychologist
• a nurse
• a social worker, including support workers for victims of
crime and counsellors who treat people for emotional or
psychological conditions
• a researcher for professional or academic purposes.
The aim of the provision is to protect health service providers
who, in good faith and on reasonable grounds, fail to disclose
information to police. While many situations arise in which a medical
practitioner is technically in breach of the Act, in fact prosecutions
are rare because they require the authorisation of the Attorney
General, and there is recognition of both the significance of the
therapeutic relationship and the justifications provided in good faith
by responsible practitioners.
For example, imagine two 15-year-olds engaging in consensual
sexual activity. This is a ‘serious offence’ for the purposes of
s 316, because the parties are under the age of consent (16). If this
information was disclosed to a healthcare provider by one of the
young people in the course of a consultation about contraception or
sexually transmitted infections, technically there would be a duty to
report it. However, the regulations under the Crimes Act will ordinarily
excuse the doctor for failing to notify police because of the practical
difficulties with reporting such behaviour and the risk that the young
person may then not seek further medical advice.

[19.3.2] Do I have to report suspected child abuse? Reporting

suspected child abuse is mandatory in all states and territories except
Western Australia. In these jurisdictions it is an offence not to report
suspected child abuse, including sexual abuse, non-accidental physical
injury and psychological harm (see table 19.3.2).

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TABLE 19.3.2 Legislation on reporting child abuse

ACT Children & Young report to be made to the Chief
People Act 1999 Executive of Family Services as soon as
practicable
NSW Children & Young report to be made to Director General
Persons (Care & of Community Services as soon as
Protection) Act 1998 practicable
NT Community Welfare report to police as soon as practicable
Act 1983
Qld Public Health Act immediately give notice of the harm or
2005 likely harm to the chief executive (child
safety), either orally, or by fax, email or
similar
SA Children’s Protection report to must be made as soon as
Act 1993 practicable to Dept of Families and
Communities
Tas Children, Young report to be made to Secretary, Dept of
Persons & Their Health and Human Services as soon as
Families Act 1997 possible
Vic Children & Young report to be made to Protective
Persons Act 1989 Intervenor as soon as practicable

[19.3.3] Do I have to report suspected domestic violence? In

Tasmania the Family Violence Act 2004 requires health professionals
to report suspected cases of family violence to a police officer as
soon as practicable, where the violence involved the use of a weapon,
sexual violence or physical violence.
In other jurisdictions, health organisations have policies that
require reporting of criminal offences or other conduct to the police
or another agency. For example, NSW Health domestic violence
policies require the reporting of suspected domestic violence to the
police.

19.4 Taking blood samples following motor

vehicle accidents
[19.4.1] Can a health professional be required to take a blood
sample from someone who has been in a car accident? In
all Australian jurisdictions, drink-driving legislation authorises
compulsory blood alcohol tests on all patients admitted to hospital
after being involved in a motor accident. Some jurisdictions also
provide for tests for drugs other than alcohol.

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The Victorian legislation authorises a doctor to take blood for

alcohol or drug testing when a person over 15 is brought to a hospital
after a motor accident. However, it does not require the doctor to do
the testing at the direction of a police officer. The person need not
have been a driver.
Unlike Victoria, New South Wales requires doctors to take a
blood sample, with or without the patient’s consent. It is an offence
not to take a sample.
All states and territories have laws for mandatory blood testing
and other testing in cases of motor vehicle accidents, and cases of
drink and drug driving (see table 19.4.1). These laws often make it
an offence for patients to refuse to submit to testing, and they also
require medical practitioners to test a patient if directed to do so
by police. In some circumstances in which a consent is not given,
legislation in a number of jurisdictions deems the blood alcohol level
to be above the limit.

TABLE 19.4.1 Legislation relating to mandatory alcohol and

drug testing for drivers
ACT Road Transport (Alcohol & Drugs) Act 1977
NSW Road Transport (Safety & Traffic Management) Act 1999
NT Traffic Act 1987
Qld Transport Operations (Road Use Management) Act 1995
SA Road Traffic Act 1961
Tas Road Safety (Alcohol & Drugs) Act 1970
Vic Road Safety Act 1986
WA Road Traffic Act 1974

References and further reading

Kerridge I, Lowe M & McPhee J, Ethics and law for the health
professions (2nd edn, 2005) Federation Press, Sydney,
chapter 14
Mazza D, Lawrence J, Roberts G & Knowlden S, ‘What can we
do about domestic violence?’ (2000) 173 Medical Journal of
Australia 532–5
McIlwraith J and Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapter 16

292
 Law enforcement agencies [19.4.1]

Skene L, Law and medical practice: rights, duties claims and

defences (2nd edn, 2004) LexisNexis, Sydney, chapter 8

Cases
W v Edgell [1990] 1 All ER 835

293
 CHAPTER 20

Certificates
20.1 Sickness certificates
[20.1.1] When will I be asked to write a sickness certificate? A
sickness certificate or certificate certifying illness may be required
by an employer when a person’s state of health necessitates time
away from the workplace. This may be because the employee can-
not work and/or should not work. There are also legislative schemes
such as workers compensation, life insurance, accident compensa-
tion and superannuation that have their own regulatory mechanisms
requiring certificates.
Another common situation is for students to seek certification of
illness to prove their inability to satisfy course requirements.
Many organisations and registration boards have adopted policies
to regulate the issuing of sickness certificates. This chapter gives a
general guide to the rules, but see table 20.1.1. for more detail.

TABLE 20.1.1 Policies dealing with sickness certificates

Cth AMA Certificates certifying illness 1998 (www.ama.
com.au/web.nsf/doc/SHED-5FT43S)
ACT ACT Medical Standards policy paper no 2: Medical
Board certificates
NSW NSW Medical Medical certificates policy (www.nswmb.org.au/
Board index.pl?page=68)
NT NT Medical Back dating medical certificates – not on
Board (newsletter 2002)
Qld Qld Medical Policy on medical certificates (www.
Board medicalboard.qld.gov.au/Publications/
Publications_files/Medical%20Certificates.pdf)
SA SA Medical Certificates certifying illness 1998 (this is a
Board version of the AMA policy)
Vic Medical Certificates certifying illness 1998 (www.
Practitioners medicalboardvic.org.au/content.php?sec=49)
Board Victoria (this is a version of the AMA policy)
=
294
 Certificates [20.1.4]

= TABLE 20.1.1 Policies dealing with sickness certificates

Tas Medical Guide to good medical practice (www.
Council of medicalcounciltas.com.au/pdfs/Guide%20
Tasmania to%20Good%20Medical%20Practice.pdf)
WA WA Medical Sickness certificates: Medical Board Policy
Board August 2003 (www.wa.medicalboard.com.au/
pdfs/SicknessCertificates.pdf)

[20.1.2] What are the doctor’s responsibilities when writing a

sickness certificate? Medical certificates are legal documents. A doc-
tor who deliberately issues a false, misleading or inaccurate certificate
could face disciplinary action under medical registration legislation,
and may also be exposed to civil or criminal legal action.
Doctors have a responsibility to obtain and note enough factual
information through taking a history and performing a physical
examination to issue a certificate certifying unfitness for work.
Doctors should not inadvertently reveal confidential patient
information. If an employer or educational institution seeks further
details concerning the patient’s condition, the patient’s consent must
be obtained before that information can be made available.
Some employers and educational institutions now have their own
certificates, which include consent from the patient to provide more
detailed health information.

[20.1.3] What are the responsibilities of employees? Employees

have a responsibility to consult a doctor in a timely manner when
requesting a medical certificate. They also have a responsibility to
present the reasons for requesting a certificate in a way that enables
the doctor to make an accurate assessment of their eligibility.

[20.1.4] What information should the certificate contain? The

usual requirements for a medical certificate are:
• the date on which the certificate was issued
• the patient’s name
• the diagnosis or a description of the illness
• the date or dates on which the patient is or was unfit for work
• the date on which the illness commenced
• the name and address of the doctor issuing the certificate
• the signature of the doctor issuing the certificate.
Some certificates allow for supplementary information to assist the

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[20.1.5] The Australian Medico–Legal Handbook

employee in obtaining the appropriate leave, especially if there is a

discrepancy between the period for which the certificate is issued
and the date of issue.
A specific diagnosis is not usually required, although some cer-
tificates provided by employers and educational institutions require
such detail. If a specific diagnosis is required the patient should be
told about this so they are aware that they are consenting to the use
of their health information for that purpose. In most cases, employers
accept ‘medical condition’ as the diagnosis. This preserves the confi-
dentiality of the patient, although there will clearly be cases where it
will be in the interests of the employer, and of other employees, for
the employer to be aware of the nature of the illness or injury.

The certificate should be written so that a non-medical person can

read and understand it. It should be written on stationery designed
specifically for the purpose.
!
[20.1.5] Must I date the certificate on the day of the consultation?
Certificates must be dated on the day they were written. There are
no circumstances under which this is not required. A doctor may
be able to certify that a period of illness occurred before the date
of examination. The doctor should give careful consideration to
the circumstances before issuing a certificate certifying a period of
illness before the date of examination, particularly in relation to a
minor short illness that is not demonstrable on the day of examina-
tion, and add supplementary remarks, where appropriate, to explain
any discrepancy.
Some certificates provide an option for the doctor to state that
the illness, for which there is no longer evidence, was claimed by
the patient to have rendered them unfit for work.

20.2 Assessing fitness to drive

[20.2.1] How do I find information about assessing fitness to
drive? There are many sources of information on assessing fitness
to drive. The primary source is the website run by the Austroads
organisation, a joint body representing the state and territory roads
and traffic authorities, the Commonwealth Department of Transport
and Regional Services, the Australian Local Government Association
and Transit New Zealand. Austroads has worked with numerous

296
 Certificates [20.2.2]

organisations, including several of the colleges of medicine, to create

the policy Assessing fitness to drive 2003 (www.austroads.com.au/
aftd/index.html).

[20.2.2] What are the responsibilities of drivers? Licensed drivers

have a duty to advise the licensing authority of any permanent or
long-term injury or illness that affects their ability to drive safely.
Penalties can be imposed for a failure to report. Table 20.2.2 sets
out the driver’s duties in each jurisdiction.
A person may also be liable at common law if they continue to
drive knowing that they have a condition that is likely to adversely
affect their driving ability.
Where a medical examination is requested by the licensing
authority, drivers also have a duty to truthfully declare their health
status to the examining health professional.

TABLE 20.2.2 Legislation on driver responsibility

ACT Road Transport (Driver Driver must notify authorities of any
Licensing) Regulation permanent or long-term illness or
2000 injury that impairs driving within 7
days (cl 77(2), (3))
NSW Road Transport (Driver Driver must notify authorities of any
Licensing) Regulation permanent or long-term illness or
1999 injury that impairs driving as soon as
practicable (cl 30(5))
NT Motor Vehicles Act 1949 Driver suffering from physical or
mental incapacity that may affect
the ability to drive must notify the
authority (s 11(3))
Qld Transport Operations Driver must notify authorities of
(Road Use Management– medical conditions that make the
Driver Licensing) driver continuously unfit to safely
Regulation 1999; operate a motor vehicle for more
Transport Operations than 1 month (Reg cl 13(1) , Standard
(Passenger Transport) cl 8(2)(a), (b))
Standard 2000
SA Motor Vehicles Act 1959 Driver must notify authorities of
illness or injury that may impair
driving within a reasonable time (s
98AAF)
=
297
 [20.2.3] The Australian Medico–Legal Handbook

= TABLE 20.2.2 Legislation on driver responsibility

Tas Vehicle & Traffic (Driver Driver must notify the registrar as
Licensing & Vehicle soon as practicable of:
Registration) Regulations (a) any permanent or long-term injury or
2000 illness that may impair the ability to
drive safely; or
(b) any deterioration of physical or
mental condition (including a
deterioration of eyesight) that may
impair the ability to drive safely; or
(c) any other factor related to physical
or mental health that may impair the
driver’s ability to drive safely (cl 29(6),
(7))
Vic Road Safety (Drivers) Driver must notify authorities of any
Regulations 1999 illness or injury that may impair driving
as soon as practicable (cl 225 (3))

[20.2.3] What are the responsibilities of doctors? In assessing and

reporting fitness to drive, the doctor has the usual responsibility to
use due skill and care in examining and reporting on the person’s
medical condition. Included in this responsibility is an obligation to
reveal information about the person’s medical condition only with
their consent. However, in some circumstances the doctor’s duty to
maintain confidentiality is qualified, so that confidentiality may be
breached in order to protect public safety.
If the person is unable to appreciate the impact of their condition,
or to take notice of the doctor’s recommendations due to cognitive
impairment, or if driving continues despite appropriate counselling
and is likely to endanger the public, the doctor may consider reporting
directly to the licensing authority. In the ACT, New South Wales,
Queensland, Tasmania and Victoria legislation provides that health
professionals who report, without the person’s consent but in good
faith, that the person is unfit to drive are protected from civil and
criminal liability (see table 20.2.3A).In South Australia and the
Northern Territory, current legislation goes further and imposes
mandatory reporting. Health professionals in these jurisdictions
have a positive duty to notify the relevant authority in writing if
they believe that a driver is physically or mentally unfit to drive
(see table 20.2.3B).
In Western Australia at the time of writing there is no legislated
requirement for mandatory reporting, nor does the statute indemnify

298
 Certificates [20.2.5]

TABLE 20.2.3A Legislation on the doctor’s responsibility to

report
ACT Road Transport (General) Act 1999 s 230(3); Road Transport
(Driver Licensing Act) 1999 s 28; Road Transport (Driver
Licensing) Regulation 2000 rr 15, 78
NSW Road Transport (General) Act 2005 s 243(3) & (4); Road
Transport (Driver Licensing) Act 1998 s 20; Road Transport
(Driver Licensing) Regulation 1999 r 31
Qld Transport Operations (Road Use Management) Act 1995 s 142
Tas Vehicle & Traffic Act 1999 ss 63, 56
Vic Road Safety Act 1986 s 27

TABLE 20.2.3B Mandatory reporting

NT Motor Vehicles Act 1999 s 11
SA Motor Vehicles Act 1959 s 148

health professionals who make a report to the licensing authority

without the patient’s consent.

[20.2.4] What should I take into account when considering

whether to report a driver? In making a decision about reporting
directly to the driver licensing authority, it may be useful for a health
professional to consider the following:
• the seriousness of the situation
• the risks associated with disclosure without the person’s
knowledge or consent, balanced against the implications of
non-disclosure
• the health professional’s ethical and professional obligations
• whether the circumstances indicate a serious and imminent
threat to the health, life or safety of any person.

[20.2.5] What should I do if a driver licensing authority requests

an examination? The situation in regard to confidentiality is slightly
different where a person presents for a medical examination at the
request of a driver licensing authority. The patient will have a form
or letter from the licensing authority requesting an examination for
the purposes of licence application or renewal, or as a condition of a
conditional licence. The completed form is generally returned to the
licensing authority by the patient; there is thus no risk of breaching

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[20.2.6] The Australian Medico–Legal Handbook

confidentiality or privacy, as long as only information relevant to

their driving ability is included.
People in this situation might include people over a certain age who
are required to be medically examined on a regular basis to maintain
their licence, or people with a particular medical condition.

[20.2.6] How does the privacy law affect assessment of driving

ability? All health professionals should be aware of the National
privacy principles, the Information privacy principles and other
privacy legislation applicable in their jurisdiction (such as health
records legislation) when collecting and managing patient information
and when forwarding such information to third parties. These issues
are discussed more fully in chapter 17.

[20.2.7] How should I interact with the patient when assessing

fitness to drive? It is preferable that any action taken in the interests
of public safety should be taken with the patient’s consent, and
certainly with the patient’s knowledge. The patient should be fully
informed about why the information needs to be disclosed to a third
party – in this case the driver licensing authority – and be given the
opportunity to consider this information. Failure to inform the patient
is likely to exacerbate any feelings of mistrust the patient has in the
patient–professional relationship.

20.3 Notification of birth

[20.3.1] Do I have a duty to notify authorities when a child
is born? All jurisdictions require that a birth be reported to the
Registrar of Births, Deaths and Marriages in the jurisdiction in
which it occurred. The notification must include the child’s name
and parentage. Ordinarily it is parents who have the responsibility
to inform authorities of a birth, but healthcare professionals who
have knowledge of the birth may also share in this responsibility. A
summary of the relevant responsibilities is contained in table 20.3.1.

TABLE 20.3.1 Obligation to notify births

ACT Births, Deaths Notification by occupier of premises
& Marriages within 7 days.
Registration Act
1997
=
300
 Certificates [20.3.2]

= TABLE 20.3.1 Obligation to notify births

NSW Births, Deaths Notification by occupier of premises
& Marriages within 21 days.
Registration Act For home births, duty is with the father, or
1995; Notification of with others attending the birth or present
Births Act 1915 within six hours of it (notification within 36
hours).
NT Births, Deaths Notification by occupier of premises
& Marriages within 10 days.
Registration Act
1996
Qld Registration of Notification by occupier of premises
Births, Deaths & within 7 days. Persons present have a
Marriages Act 1962 duty to ensure registration.
SA Births, Deaths Notification by occupier of premises
& Marriages within 60 days.
Registration Act
1996
Tas Registration of Notification by occupier of premises
Births & Deaths Act within 60 days. Persons present have a
1895 duty to ensure registration.
Vic Births, Deaths Notification by occupier of premises
& Marriages within 24 hours. Persons present have a
Registration Act duty to ensure registration.
1996; Health Act Notification must also be made to the
1958 clerk of the municipal district so that
community care services can be notified.
For hospital births, the duty to notify lies
with the matron or person in charge of
the hospital (within 48 hours). For home
births, the duty lies with the midwife,
father or person in attendance (within 24
hours).
WA Births, Deaths Notification by occupier of premises
& Marriages within 1 month. Persons present have a
Registration Act duty to ensure registration.
1998

[20.3.2] Do I have to notify authorities of a stillbirth? Stillbirths

must be registered in all states and territories, but in Tasmania they
are registered as deaths, not births (see table 20.3.2).

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[20.4.1] The Australian Medico–Legal Handbook

TABLE 20.3.2 Legislative definition of stillbirth

ACT Births, Deaths & Child of at least 22 weeks gestation
Marriages Registration or 500 g
Act 1997
NSW Births, Deaths & Child of at least 20 weeks gestation
Marriages Registration or 400 g whose heart has not beaten
Act 1995
NT Births, Deaths & Child of at least 20 weeks gestation
Marriages Registration or 400 g
Act 1996
Qld Registration of Births, Child of at least 20 weeks gestation
Deaths & Marriages Act or 400 g whose heart has not beaten
1962
SA Births, Deaths & Child of at least 20 weeks gestation
Marriages Registration or 400 g whose heart has not beaten
Act 1996
Tas Registration of Births & Child of at least 20 weeks gestation
Deaths Act 1895 or 400 g whose heart has not beaten
Vic Births, Deaths & Child of at least 20 weeks gestation
Marriages Registration or 400 g who has not breathed
Act 1996
WA Births, Deaths & Child of at least 20 weeks gestation
Marriages Registration or 400 g
Act 1998

20.4 Death certificates

[20.4.1] When will I be asked to sign a death certificate? All
jurisdictions require that a death be reported to the Registrar of Births,
Deaths and Marriages in the jurisdiction in which it occurred. Table
20.4.1 summarises the obligations of notification.

TABLE 20.4.1 Reporting of deaths: legislation and

requirements
ACT Births, Deaths & Marriages Notification by attending medical
Registration Act 1997 practitioner within 14 days
NSW Births, Deaths & Marriages Notification by attending medical
Registration Act 1995 practitioner within 1 month
NT Births, Deaths & Marriages Notification by attending medical
Registration Act 1996 practitioner within 14 days
Qld Registration of Births, Notification by any person
Deaths & Marriages Act attending within 30 days
1962
=
302
 Certificates [20.4.3]

= TABLE 20.4.1 Reporting of deaths: legislation and

requirements
SA Births, Deaths & Marriages Notification by attending medical
Registration Act 1996 practitioner within 14 days
Tas Registration of births & Notification by any person
Deaths Act 1895 attending within 7 days
Vic Births, Deaths & Marriages Notification by attending medical
Registration Act 1996 practitioner within 21 days
WA Births, Deaths & Marriages Notification by funeral home
Registration Act 1998 director or local registrar within 14
days

[20.4.2] How is the death certificate completed? Death certificates

in Australia comprise two separate forms:
• a medical certificate indicating the cause of death, and
• a questionnaire with personal information about the deceased.
The medical certificate is completed by either:
• a doctor who was in attendance at the time of death or who can
certify the cause of death, or
• the coroner, when the death was unexpected or unexplained.
The personal information questionnaire is completed by the next-
of-kin. This normally takes place at the funeral home with the help
of the funeral director. Both forms are collected by the Registrar of
Births, Deaths and Marriages. Where the body is to be cremated, a
separate form pertaining to cremation must also be completed.

[20.4.3] What should be given on the medical certificate as the

cause of death? There are two parts to the standard medical certifi-
cate of cause of death.
Part I is the area ‘above the line’. This is where the disease or
condition leading directly to the death is stated, followed by any
conditions that gave rise to this disease or condition (these are called
antecedent causes). Conditions listed above the line should form what
is termed the ‘morbid train of events’; that is, a sequence starting
at the disease or condition that led directly to death. This condition
may be stated as ‘due to’ (or ‘as a consequence of’) an antecedent
cause that came about, in turn, ‘due to’ (or ‘as a consequence of’)
another antecedent cause, and so on. The underlying cause is given
last. This is the condition that is deemed to have started the morbid
train of events.

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[20.5.1] The Australian Medico–Legal Handbook

Part II is the area ‘below the line’. This area is used to list other
significant conditions that have contributed to death but are not
deemed to be part of the morbid train of events.
Failure of an organ or organ system is not a sufficient cause of
death for the purposes of death certification. The underlying cause
of the failure must be given. If it is not known, the death should be
reported to the coroner.

20.5 Medico-legal report writing

[20.5.1] When might I be asked to provide a medico-legal report?
There are numerous situations in which you may be asked to write
a medico-legal report. You may be asked to provide a report as the
treating doctor to comment on your patient’s medical problems. The
report might be needed for a worker’s compensation claim, a claim
for pension benefits or an insurance claim. Alternatively, employers
may require a report as to your patient’s fitness to work. The police,
coroner or healthcare complaints bodies may also require a report
for an investigation. Finally, you may be called to give evidence as
an expert witness in civil litigation.

[20.5.2] What are my professional duties if I am asked to write

a medico-legal report? Before writing any report, clarify your
role in writing the report and whether you have the appropriate
authority to write it. Permission must be given by the patient or by
the patient’s legal representatives. Be very careful about issues of
patient confidentiality.

In the ACT, s 7 of the Health Records (Privacy and Access) Act

1997 makes it an offence for a person to write a ‘health status
report’ about a person without the person’s permission. A health
!
status report is a report written for a third party and not for the
purposes of treating a patient.

Good medico-legal reports are written in an unbiased and factual

manner. They should clearly state the patient’s name and details.
They should record who has made the request for the report and for
what purpose. It is important to write clearly and with regards to
suitable language so that the recipient of the report can understand its
contents. Avoid jargon, abbreviation and the use of legal terminology.

304
 Certificates [20.5.2]

In medico-legal reports you are being asked to comment on the

patient’s medical condition, not give advice as to the law.

If you are writing a medico-legal report, your role is to provide

unbiased and objective opinion. It is not to advocate a position in
favour of the patient, or against the patient.
!
Each state and territory Medical Board has either adopted its own
policy on medico-legal report writing, or has adopted the policies of
the AMA. Some specialist colleges also have guidelines on medico-
legal reporting. This section deals with the general issues surrounding
medico-legal report writing and the giving of expert evidence but many
organisations have developed their own policies. Table 20.5.2 contains
a selection of sources on how to write a medico-legal report.

TABLE 20.5.2 Policies on medico-legal reports

AMA Guidelines for doctors acting as expert medical
witnesses 1997 (www.ama.com.au/web.nsf/doc/SHED-
5FTUTX); Expert medical witnesses: policy statement
1998 (www.ama.com.au/web.nsf/doc/SHED-5FTUAF);
Independent medical assessments on behalf of parties
other than the patient (www.ama.com.au/web.nsf/doc/
SHED-5G7V6A)
RANZCOG Guidelines for Fellows participating in the RANZCOG
expert witness register (www.ranzcog.edu.au/about/
pdfs/Expert_Witness_GuidelinesMay04.pdf)
RANZCP Ethical guidelines 1: independent medical assessments
on behalf of parties other than the patient; Ethical
guideline 9: ethical guidelines for independent medical
examination and report preparation by psychiatrists
(www.ranzcp.org/publicarea/ethiguide.asp)
NSW Medical Medico-legal guidelines (www.nswmb.org.au/index.
Board pl?page=52)
Qld Medical Guidelines on medico-legal reports (www.
Board medicalboard.qld.gov.au/Publications/Publications.htm)
Vic Medical Medical reports (medicalboardvic.org.au/content.
Board php?sec=50)
WA Medical Medico-legal and other independent medical
Board examinations 2004 (www.wa.medicalboard.com.au/
pdfs/Medico%2DLegal%20%2D%20Version%205.pdf)

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[20.5.3] The Australian Medico–Legal Handbook

[20.5.3] What are my legal duties if I am asked to write a medico-

legal report? Medico-legal reports are legal documents, and as such,
health professionals who deliberately issue a false, misleading or
inaccurate certificate could face disciplinary action under the poli-
cies and guidelines listed in table 20.5.2. Health professionals may
also expose themselves to civil or criminal legal action for making
false and misleading statements.

TABLE 20.5.3 Court rules concerning expert evidence

Cth Federal Court Rules 1979 www.comlaw.gov.au/
O 34A; Federal Court comlaw/management.nsf/
Practice Direction: lookupindexpagesbyid/
Guidelines for Expert IP200401133?OpenDocument
Witnesses in Proceedings www.fedcourt.gov.au/how/prac_
in the Federal Court of direction.html
Australia (19 March 2004); www.comlaw.gov.au/
Family Law Rules 2004 comlaw/management.nsf/
lookupindexpagesbyid/
IP200401220?OpenDocument
ACT Civil Law (Wrongs) Act 2002 www.legislation.act.gov.au/
a/2002-40/default.asp
NSW Uniform Civil Procedure www.legislation.nsw.gov.au/
Rules 2005 maintop/scanact/inforce/NONE/0
Qld Uniform Civil Procedure www.legislation.qld.gov.au/
Rules 1999 LEGISLTN/CURRENT/S/
SuprCrtQUCPRu99.pdf
SA SA Practice Direction No. www.courts.sa.gov.au/lawyers/
46A Guidelines for Expert index3.html
Witnesses in Proceedings in
the Supreme Court of South
Australia, 17 May 2002

[20.5.4] Are there specific legal duties applying to expert evidence

given for the purpose of litigation? Additional legal duties apply
to expert witnesses in the civil litigation process.

Case example
Justice Beaumont of the Federal Court of Australia summarised
the common law duties of experts in Sampi v State of Western
Australia [2000] FCA 1862:
1. Expert evidence presented to the court should be, and
should be seen to be, the independent product of the expert,
uninfluenced as to form or content by the exigencies of
litigation.

306
 Certificates [20.5.4]

2. An expert witness should provide independent assistance to

the court by way of objective unbiased opinion in relation to
matters within his or her expertise. An expert witness in the
court should never assume the role of an advocate.
3. An expert witness should state the facts or assumptions upon
which his or her opinion is based. He or she should not omit
to consider material facts which could detract from his or her
concluded opinion.
4. An expert witness should make it clear when a particular
question or issue falls outside his or her expertise.
5. If an expert’s opinion is not properly researched because he
or she considers that insufficient data is available, then this
must be stated with an indication that the opinion is no more
than a provisional one. In cases where an expert witness
who has prepared a report could not assert that the report
contained the truth, the whole truth and nothing but the truth
without some qualification, that qualification should be stated
in the report.
6. If, after exchange of reports, an expert witness changes his
or her view on a material matter, having read the other side’s
expert’s report, or for any other reason, such change of view
should be communicated (through legal representatives) to
the other side without delay and when appropriate to the
court.
7. When expert evidence refers to photographs, plans,
calculations, analyses, measurements, survey reports or other
similar documents, these must be provided to the opposite
party at the same time as the exchange of reports.

In the past few years there have been growing concerns over experts
presenting partisan reports, experts exceeding their area of expertise,
and a general lack of clarity of evidence. In response to these concerns
some jurisdictions have codified the roles and responsibilities of expert
witnesses in litigation. Table 20.5.3 lists some of these regimes.
Generally speaking, these regimes require the expert to com-
ply with a code of practice and to acknowledge that they have read
it, understood it and agree to be bound by it. The codes generally
state that:
• experts are duty-bound to assist the court, and this duty
prevails over any obligation to the instructing legal practitioner
or patient
• expert witnesses are required to give an objective opinion on
matters within their expertise
• experts must carry out their functions in a timely way

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[20.5.5] The Australian Medico–Legal Handbook

• experts must consider all material facts, including those that

may detract from their own opinion
• experts must tell the court if a particular question falls outside
their expertise
• experts must tell the court if their report is based on
incomplete research or inaccurate or incomplete
information.

[20.5.5] What information should I include in a medico-legal

report? While each medico-legal report may be subject to specific
requirements for reporting (see [20.5.2] and [20.5.3]), they mostly
require the following:
• a brief statement of who you are and what your job is, and
your qualifications as an expert
• the facts, matters and assumptions on which your report are
based and the reasons for each of your opinions
• a statement of which medical records or information you had
access to when you wrote the report
• any examinations, tests or other investigations on which you
relied to form your opinion
• a statement that a particular issue falls outside your field of
expertise (if applicable)
• a statement that the report may be incomplete or inaccurate
without some further information (if applicable)
• a statement that your opinion is not a concluded opinion
because of insufficient research or data or some other reason
(if applicable).

If your opinion on a material matter changes you need to provide

a supplementary report that states how your opinion has changed
and why. You must not alter the original report.
!
[20.5.6] What fees can I charge for writing a medico-legal report?
Generally fees can be set on an amount based on your time and effort.
However, in some areas, such as workers’ compensation, fees are
generally set at a certain rate.
‘No win no fee’ arrangements are highly controversial because
of the perceived bias that could arise with such an arrangement. In
some jurisdictions such as the Family Court and South Australian

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 Certificates [20.5.6]

Supreme Court, expert witnesses can be required to give details of

their payment arrangements.
References and further reading
Bird S, ‘How to write a medico-legal report’ (2004) 1 Australian
Family Physician 66–7
New South Wales Law Reform Commission, Report 109: Expert
witnesses NSWLRC, Sydney (2005)
United Medical Protection, Medico-legal handbook (2003) UMP,
Sydney, chapter 3

Cases
Sampi v State of Western Australia [2000] FCA 1862

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 CHAPTER 21

Employment
21.1 Contractors and employees
[21.1.1] What is the difference between a contract for service
and an employment contract? The law of contracts is discussed
in chapter 5. Employment law is primarily based on contract law,
but it has been substantially affected by common law and legislative
changes. One of the key issues in employment law is whether a person
is an independent contractor or an employee.
A contract for service is a contract where one party agrees
to provide a service to another, usually for a fee. Contracts for
service are normally for a specific and defined task. When the task
is completed and paid for, the contractual relationship comes to a
close. The providers in such contracts for service are referred to as
independent contractors.
In the healthcare context, professionals are often contracted by
institutions to provide services, such as visiting medical officers and
nurse practitioners to hospitals and nursing homes. These contractors
are responsible for their own equipment, entitlements and insurance.
Doctors employed by their own companies (usually set up for
superannuation purposes) who provide sessional or locum services
for other doctors contract their services, even though the relationship
can have all the appearances of the traditional employer–employee
type: see [21.1.2].
An employment contract is a special kind of contract for service
(sometimes referred to as a contract ‘of service’, rather than ‘for
service’) for which the law implies a number of additional terms and
conditions. Employment contracts create an ongoing relationship,
rather than an agreement for a specific task. The agreement gives
the employer the right to determine what work is to be done and to
control the employee’s responsibilities. Greater rights are given to the
employee to expect certain conditions of employment, such as types
of leave, the deduction of tax from wages, and payment of workers’

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compensation insurance. When an employment contract is created

a number of extra rights and duties are created by both the common
law and in legislation. Employment contracts are often coupled with
a number of equitable duties which go beyond the express terms
of the relationship, such as duties of good faith and duties to keep
confidential information.

[21.1.2] Is there a test to determine whether a person is an inde-

pendent contractor or an employee? It is important to work out
whether a person is an independent contractor or an employee,
because the legal ramifications of each type of contract are quite
different. It is not always easy to tell the difference, as there is no
one test or indicia that can be used in all situations. The common
law requires the contract to be examined holistically so that all the
factors are considered. The primary issue of concern is how much
power one contracting party has to control the other’s behaviour (the
control test). Nielsen (2006) summarised the common law approach
as follows:

There are also no hard-and-fast rules as to which indicia should

be examined. However, in addition to looking at the extent of any
authority to control, it is especially relevant to ask whether the
worker:
• supplies their own tools or equipment
• is free during the engagement to perform similar work for other
‘employers’
• carries a risk of financial loss, or by the same token, an opportunity
to make a profit from the work, or
• is paid according to task completion, rather than receiving wages
based on time worked.
Positive answers to any of these questions will militate to some
degree against a finding that the contract is one of service (ie an
employee). If the answer is negative, it is more likely the worker is
an employee.

Because the common law test is not easily applied across the board,
fear is sometimes expressed that some people might be forced into
being independent contractors rather than treated as employees, where
they would have greater common law and legislative protections.
Some states responded to these fears by creating ‘deeming laws’ that

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gave the government or industrial relations committees the power to

deem certain workers employees, even when their contracts classed
them as independent contractors.
The federal government has now overturned these laws in the
Independent Contractors Act 2006 and the Workplace Relations
Legislation Amendment (Independent Contractors) Act 2006. The
states can no longer deem contractors to be employees. The effect
of these federal statutes has been to return to the common law test
of whether a person is an independent contractor or an employee.
To counter criticisms that this may have a deleterious effect on
some employees who might be coerced into becoming independent
contractors, the federal government has created a number of new
offences against ‘sham contracting provisions’. Penalties apply to
employers who knowingly seek to disguise employment relationships
as independent contracting arrangements, or who mislead and
deceive employees into becoming independent contractors. It is also
an offence to sack or threaten to sack a person in order to coerce
them into becoming an independent contractor when performing
substantially the same work.

21.2 Implied terms in employment contracts

[21.2.1] What terms are implied into employment contracts by
the common law? The common law implies a number of duties for
employees, including:
• the duty to carry out reasonable and lawful instructions given
by the employer
• the duty to comply with the employer’s directions, as long as
they are reasonable, do not entail health and safety risks or
involve illegal behaviour (employees should let the employer
know if they are being asked to do a task for which they do not
have appropriate skills)
• the duty to act with reasonable care and skill. Employers
are responsible to third parties for the negligence of their
employees under the principle of vicarious liability: see
[4.7.1]. As such they can expect that their employees will act
with reasonable care and skill. If an employee negligently
harms a patient the employer will be responsible, but may
then seek compensation from the employee for breaching the
duty to act with reasonable care and skill. This is rare, as most
employers have insurance to cover their liability, and some

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jurisdictions (New South Wales, the Northern Territory, South

Australia) have passed laws that prevent employers from suing
their employees for negligence
• the duty of fidelity. Employees have a duty not to denigrate
the services provided by their employer, or to undermine the
employer’s business. Employees should also communicate
valuable information to the employer, and protect the
employer’s confidential information.
The common law implies duties on the part of employers, includ-
ing:
• the duty to pay wages. Employers have a duty to pay wages
and to reimburse employees for expenses incurred in the
course of their employment.
• the duty to provide a safe place to work. The common law
imposes a duty on employers to take reasonable care to avoid
illness and injury in the workplace. This is in addition to the
occupational health and safety and workers’ compensation
laws discussed below.

21.3 Industrial and workplace relations

[21.3.1] What laws govern industrial and workplace relations
in Australia? Since Federation, jurisdiction concerning workplace
relations have been shared between the state and federal governments.
The federal government’s laws were primarily based on its consti-
tutional power of conciliation and arbitration. The main federal law
is the Workplace Relations Act 1996. This Act allows for the creation
of federal awards, enterprise bargaining agreements and Australian
workplace agreements (AWAs).
An award is an instrument that legally sets the minimum terms
and conditions of employment in an area. It was ordinarily created
through a process of collective bargaining where a log of claims was
brought by a union and rejected by an employer, which then led to
an arbitration and conciliation process before an arbitration body,
such as the federal Australian Industrial Relations Commission or
the New South Wales Industrial Relations Commission. The decision
(the award) then set the terms and conditions for employment in that
entire industry.
Enterprise bargaining is smaller in scale and applies to agreements
made directly between the employer and the employees regarding the
terms and conditions of employment. Agreements can be made with

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a majority of employees. In most states, and previously in the federal

law, conditions under enterprise bargaining could not disadvantage
the employees involved. However, as discussed below, under the
new federal laws this has now been changed.
Australian workplace agreements are one-on-one contracts
between an employer and an employee. Unions cannot be a party
to the agreement. They exist to the exclusion of awards and state
enterprise bargaining agreements and (in most cases) federal enterprise
bargaining agreements.
Each state has its own system for the setting of pay and conditions,
either through awards or through enterprise bargaining agreements
(apart from Victoria which referred its power to regulate labour to
the federal government in 1996, reserving the power to control the
employment of Victorian public servants). Queensland also recognises
AWAs (referred to as Queensland workplace agreements).
Table 21.3.1 summarises the basic principles under the state
systems (barring Victoria). Each jurisdiction has it own awards and
enterprise bargaining systems.
In 2005 the federal government brought in a number of sweeping
changes to workplace relations regulation and began to base its control
over workplace relations on its power to regulate corporations. The
High Court upheld the constitutionality of this use of power: New
South Wales v Commonwealth of Australia [2006] HCA 52. As such
the federal government now regulates employment in all trading
corporations, financial corporations and foreign corporations. It also
controls employment regulation in the ACT, the Northern Territory
and Victoria.
Employees who are not covered by the new federal system
are those outside the ACT, the Northern Territory and Victoria
and those whose employment situation involves unincorporated
employers, such as sole traders, partnerships and state government
departments. State health departments and area health services do
not come under the new federal system. Private hospitals, hospices
and nursing homes are regulated by the new system (assuming that
they are incorporated).
There are also a number of excluded matters for which the federal
government does not wish to regulate. They include some types of
discrimination, workers compensation, occupational health and
safety, long service leave, child labour and jury service. These laws
remain regulated by the states.

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 Employment [21.3.2]

TABLE 21.3.1 State systems of industrial and workplace

relations
NSW Industrial Relations Act 1996
The NSW Industrial Relations Commission settles disputes, creates
awards, and approves enterprise bargaining agreements. It can refuse
to certify such agreements on the grounds that they may be unfair and
its judicial arm (the Industrial Court of NSW) has jurisdiction over the
making of contracts, unfair contracts, unfair dismissal and industrial
action, among other things (www.lawlink.nsw.gov.au/irc).
Qld Industrial Relations Act 1999
The Qld Industrial Relations Commission (QIRC) deals with dispute
resolution and the setting of awards. Queensland Workplace
Agreements between individual employers and employees must
be filed with the QIRC and can only be approved if they do not
disadvantage the employee and are in the public interest. The Qld
Industrial Court has jurisdiction to review the making of contracts,
unfair contracts, unfair dismissal and industrial action, among other
things (www.qirc.qld.gov.au/).
SA Fair Work Act 1994
The SA Industrial Relations Commission has a number of functions
including maintaining minimum standards of employment, dispute
resolution, making state awards and scrutinising enterprise
agreements. It also hears unfair dismissal cases. The Industrial
Relations Court is its judicial arm (www.industrialcourt.sa.gov.au/).
Tas Industrial Relations Act 1984
The Tasmanian Industrial Commission conciliates and arbitrates
industrial disputes, deals with unfair dismissal claims, fixes wages
rates, and sets terms and conditions of employment by making
industrial awards and approving enterprise agreements and industrial
agreements (www.tic.tas.gov.au/).
WA Industrial Relations Act 1979; Minimum Conditions of Employment
Act 1993
The WA Industrial Relations Commission deals with disputes, awards,
minimum pay claims, unfair dismissal claims and the approval of
enterprise bargaining agreements (‘Employer–Employer Agreements’)
(www.wairc.wa.gov.au/).

[21.3.2] How does the federal system work? The new system was
referred to originally as ‘WorkChoices’ (www.workchoices.gov.au),
but following a shift in policy it is now referred to as the ‘workplace
relations system’ (www.workplace.gov.au). It aims to increase the
flexibility of employment arrangements and reduce the influence
of collective bargaining in the process of settling employment

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conditions. Under WorkChoices, awards will be amalgamated and

streamlined. Employers and employees will still be able to enter
into enterprise bargaining agreements, but they will also now have
access to AWAs.
Basic conditions and pay scales will be removed from awards and
placed in scales as part of a new Australian fair pay and conditions
standard (AFPCS). The AFPCS guarantees five basic conditions in
all agreements:
• guaranteed basic rates of pay and guaranteed casual loadings:
a federal minimum wage or guaranteed basic rate of pay under
an applicable Australian pay and classification scale; for casual
employees, a casual loading set by the Australian Fair Pay
Commission
• hours of work: maximum ordinary hours of work limited to 38
hours per week (which can be averaged over up to 12 months)
and ‘reasonable’ additional hours
• annual leave: four weeks paid annual leave per year (five
weeks for some continuous shift employees), up to two weeks
of which can be cashed out at the employee’s written election
where their workplace agreement permits
• personal leave: 10 days paid personal/carer’s leave per year
and two days paid compassionate leave per occasion; where
this paid personal leave has been exhausted, two days unpaid
carer’s leave per occasion
• unpaid parental leave: for all employees other than certain
casual employees, up to 52 weeks unpaid parental leave
(maternity, paternity and adoption).
The transitional provisions allow workers who were always under
federal awards or agreements (including AWAs) to continue to work
under those conditions (however, federal awards are also to be reduced
in size and number). Workers in existing state-registered enterprise
agreements will have those agreements preserved until the agreement
comes to a close, after which they will have to enter into a federal
enterprise bargaining agreement or AWA. Workers under existing
state awards that now come under WorkChoices will continue to be
under those agreements for a transitional period of three years. They
will be treated as being in a notional agreement. Prior to the three
years they may enter into a federal enterprise agreement or AWA. If
they have not done so by the end of three years a new federal award
will be applied to them.

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 Employment [21.3.2]

Interestingly, no award or agreement is allowed to contain ‘pro-

hibited content’, which includes a number of matters, including:
• conditions which are irrelevant to the employment relationship
• terms that contravene the freedom of association
• terms that prohibit or restrict the use of AWAs
• terms that commit employers to bargaining with a union
• terms that restrict the employers’ use of independent contractors
• terms that provide for union-related entitlements, such as trade
union training leave, paid union meetings, mandatory union
involvement in dispute resolution, or rights of entry for union
officials
• terms providing a remedy for unfair dismissal.
In the WorkChoices system there are four main bodies that oversee
workplace relations:
• the Australian Industrial Relations Commission, which assists
employers and employees in resolving industrial disputes;
handles certain termination of employment claims; rationalises
and simplifies awards; and deals with applications about
industrial action. Claims for unfair dismissal cannot now be
brought by employees where the employer had 100 or fewer
employees (unless the claim is based on discrimination: see
below)
• the Australian Fair Pay Commission, which adjusts the
standard federal minimum wage; determines and adjusts
minimum classification rates of pay in Australian pay and
classification scales; determines and adjusts special federal
minimum wages for junior employees, employees with
disabilities or employees to whom training arrangements
apply; determines and adjusts basic periodic rates of pay and
basic piece rates of pay payable to employees or employees
of particular classifications; and determines and adjusts casual
loadings
• the Workplace Authority, whose primary role is to accept
lodgements of workplace agreements (both collective
agreements and AWAs), check that they meet the Australian
fair pay and conditions standard and assess whether AWAs
signed after 7 May 2007 pass the fairness test. The fairness
test applies where an employee is earning less than $75,000
per year under the AWA. The employee must be fairly
compensated for the removal of, or changes to, protected

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award conditions such as penalty rates, overtime, loadings and

allowances
• the Workplace Ombudsman, which provides advice and
assistance to employers, workers and organisations about
compliance with the Workplace Relations Act 1996. It also
conducts education campaigns and investigates alleged
breaches of the Workplace Relations Act lodged by both
employers and employees. It also investigates and prosecutes
employers who break the law.

21.4 Workers’ compensation

[21.4.1] What is workers’ compensation? Workers’ compensation
is a form of no-fault compensation to provide compensation to people
for injuries sustained during work and to rehabilitate them. No-fault
compensation allows a person to make a claim for compensation
without having to prove that someone else caused the injury,
intentionally or through negligence. In the Northern Territory and
South Australia the workers no longer have rights to sue at common
law, and must rely on workers’ compensation. In the Commonwealth,
New South Wales, Queensland, Victoria and Western Australia,
workers have limited rights to sue at common law, while in the ACT
and Tasmania workers are free to choose which system they wish to
seek compensation under.
The legislation is listed in table 21.4.1.

TABLE 21.4.1 Workers’ compensation legislation

Cth Safety Rehabilitation & Compensation Act 1988
ACT Workers’ Compensation Act 1951
NSW Workers’ Compensation Act 1987; Workplace Injury
Management & Workers’ Compensation Act 1998
NT Work Health Act 1986
Qld Workers’ Compensation & Rehabilitation Act 2003
SA Workers’ Rehabilitation & Compensation Act 1986
Tas Workers Rehabilitation & Compensation Act 1988
Vic Accident Compensation Act 1985
WA Workers’ Compensation & Rehabilitation Act 1981

[21.4.2] Who is covered by workers’ compensation? Generally

speaking, all employees are covered by workers’ compensation

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 Employment [21.5.1]

schemes for injuries they sustain arising out of or in the course of their
employment. Special arrangements are made in some jurisdictions
for particular types of activity even though they might not fit the
definition of employment. Independent contractors (such as visiting
medical officers) are normally not covered, and must organise their
own insurance.
The requirement that the injury arise out of employment has been
interpreted as involving either a causal connection between the work
and the injury (for example, the work caused the injury), or that the
injury was sustained during the period of work time. The period of
work time is generally taken to include travel to and from home and
work as well as time at work functions, such as Christmas parties, or
team-building activities. McIllwraith and Madden (2006) at 373–9
provide more detail on the requirement in each jurisdiction.

[21.4.3] How can I make a workers’ compensation claim? Each

jurisdiction has its own particular requirements for notification, but
all basically require the employee to fill in a form which is then
lodged with the workers’ compensation authority.

If you are injured at work it is important that you notify your

employer as soon as possible. Even minor injuries should be
reported; while an injury may seem minor, it may worsen or be
!
exacerbated over time. Failure to promptly notify the employer
may prevent a claim from being brought. The general time limit for
making claims is six months from the date of the injury, except in
the ACT (where permanent injury claims cannot be made before
two years), Victoria (where there are varying time limits depending
on the injury) and Western Australia (12 months).

21.5 Occupational health and safety

[21.5.1] What is occupational health and safety? The duty of the
employer to provide a safe working environment was discussed at
[21.2.1]. In addition to this duty, all Australian jurisdictions now
provide for systems of occupational health and safety regulation.
The legislation is listed in table 21.5.1.

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TABLE 21.5.1 Occupational health and safety legislation

Cth Occupational Health & Safety (Commonwealth Employment)
1991
ACT Occupational Health & Safety Act 1989
NSW Occupational Health & Safety Act 2000
NT Work Health Act 1991
Qld Workplace Health & Safety Act 1995
SA Occupational Health, Safety & Welfare Act 1986
Tas Workplace Health & Safety Act 1995
Vic Occupational Health & Safety Act 2004
WA Occupational Safety & Health Act 1984

The main features of these regulatory schemes are:

• employer duties: employers are responsible for providing a
safe workplace for employees and others including visitors,
clients and independent contractors. Some jurisdictions
require written safety plans. Employers should also set up
joint management and staff committees to advise others in the
workplace and set policies for improving safety
• employee duties: employees must assist employers in
maintaining a safe workplace by employing proper practices
and using equipment properly. A staff representative can be
chosen in all jurisdictions (except the Northern Territory), who
can be trained to conduct inspections and investigate accidents
• authorities with the power to inspect, investigate and
prosecute: each jurisdiction has created an authority charged
with improving safety in the workplace through codes of
practice, guidelines and education. These bodies can also
investigate accidents and inspect workplaces to check
for compliance. In some instances these authorities are
also responsible for the prosecution of breaches of safety
requirements.

21.6 Discrimination at work

[21.6.1] What forms of discrimination are illegal in the employment
context? Australian discrimination laws are described at [3.7.2]. As
discussed, various forms of discrimination in employment are illegal,
including discrimination on the grounds of race, sex, pregnancy,

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 Employment [21.6.1]

transgender status, marital status, disability, carer responsibilities,

homosexuality, HIV/AIDS carrier status, and age. However, a number
of exceptions are recognised, including:
• genuine occupational qualifications, where race, religion,
disability or sex/gender is a relevant issue for the employment;
for example, sex may be relevant to a job where the employee
has to bathe or clothe others, or race may be relevant to a job
where a service is most effectively provided by a person of the
same race as clients, such as in counselling Aboriginal people
• the inherent requirements of the particular employment: for
example, where a person’s disability prevents them from
being able to perform certain tasks, and the employer would
suffer unjustifiable hardship if they had to provide services or
facilities to meet the disabled person’s needs.
The issue of impairment and its effect on health professionals is
discussed at [5.5.4].

References and further reading

McIlwraith J & Madden B, Health care and the law (4th edn, 2006)
Lawbook Co, Sydney, chapters 10, 11, 18.
Neilsen M A, Workplace Relations Legislation Amendment
(Independent Contractors Bill 2006) (2006–07) 19 Bills Digest,
Department of Parliamentary Services, Canberra
O’Neill N, Rice S & Douglas R, Retreat from injustice: human
rights law in Australia (2nd edn, 2004) Federation Press, Sydney,
chapter 18
Stewart A, ‘WorkChoices in overview: big bang or slow burn?’ (2006)
16(2) The Economic and Labour Relations Review 25
Turner C, Australian commercial law (26th edn, 2006) Lawbook Co,
Sydney, chapter 32

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 Glossary
affidavit a sworn statement used in litigation
balance of probabilities the standard of proof employed in civil
matters
best interests the primary test used in substitute decision-making.
The substitute decision-maker should make a decision that is in
the incompetent patient’s best interests
beyond a reasonable doubt the standard of proof employed in
criminal matters
burden of proof the responsibility of proving certain facts to the
trier-of-fact
common law the system of judge-made law inherited from
England
consideration something of value that passes between the parties
to a contract
contract a legally binding agreement
contract for service a contract to provide services that is not an
employment contract
contract of service an employment contract
damages compensation for legally recognised loss
defence a legal reason for excusing an otherwise punishable
behaviour
donor the person creating a power of attorney; the giver of a gift
enduring guardian see power of attorney
equity a system of judge-made law; an interest in property
fiduciary duty a special duty of trust and confidence that arises in
equity
functional test of competence a test of mental capacity that
requires a person to be able to comprehend and retain
treatment information; believe the information; and weigh the
information among other factors to reach a decision
guardian a person appointed by a guardianship authority or court
to make decisions for an incompetent person

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 Glossary

incremental approach an approach to the concept of duty that

allows the court to recognise new categories only where these
are analogous to already recognised duties, and the public
interest favours recognition of the new category
independent contractor a person contracted to provide services
who is not an employee
injunction a court order that a person must refrain from
engaging in certain behaviour (negative injunction), or must
comply with their legal obligations (positive or mandatory
injunction)
intentional torts civil wrongs where the tortfeasor intentionally
engages in the wrongful behaviour; for example, assault,
battery and false imprisonment
legislation laws made by parliamentary process
limitation period the time within which court action should
be commenced. Claims outside the limitation period may be
dismissed
material risk a risk that a reasonable person would be likely to
attach significance to, or that a medical practitioner knows a
particular patient does attach significance to
minor someone under 18
necessity the legal doctrine that excuses forms of otherwise illegal
behaviour when the behaviour is engaged in to avoid a greater
harm to an individual, property or the public
negligence the tort of failing to satisfy a duty of care
non-therapeutic medical treatment treatment offered for social
reasons rather than the alleviation of disease or disability
notifiable disease a disease that must be reported to health
authorities when diagnosed, or, in some cases, suspected
obiter dicta the non-precedent-setting part of a judgment
open disclosure the policy of informing patients of medical errors
parens patriae the inherent jurisdiction of superior courts to care
for children, the mentally ill and the mentally incompetent
person responsible a substitute decision-maker recognised in
some jurisdictions
plaintiff a person who brings a civil claim
power of attorney a grant of power to a person to take over the
financial and/or personal affairs of someone else
precedent the legal doctrine that requires judges to follow the
ratio decidendi of higher court decisions

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ratio decidendi the reasons for decisions that are binding as

principles on other courts
reasonable foreseeability test the primary test for establishing
whether a person owes another a duty of care; that is, whether a
risk is reasonably foreseeable
reasonable person test the primary test for establishing a
standard of care in negligence; that is, how a reasonable person
would behave in the circumstances of the case
res nullius a thing belonging to no-one, and, as such, not capable
of being treated as property
separation of powers a feature of some systems of government
in which the executive, judicial and legislative functions are
independent of each other
standard of proof the level of evidence that will satisfy the trier-
of-fact that a particular claim is true
standard of care level of conduct required to meet a duty of
care, determined by courts after taking into account what
a reasonable person would do in the circumstances of the
particular duty of care being examined
stare decisis the doctrine of precedent
subpoena an enforceable request to provide evidence
substituted judgment a decision by a substitute decision-maker
that the patient would have made had they been competent to
make it
tort a civil wrong not based on contract law
tortfeasor the person liable for committing a tort
undue influence pressure exerted on a person making a decision
to the extent that the law will not regard the decision as having
been made by the person
volenti non fit injuria the doctrine that no injury is done to a
person who consents to the risk of that injury

324
 Index
Abortion penalties, [10.3.6]
child destruction, [15.2.3] when permitted, [10.3.4]
consent, [15.2.2] intended to apply in
crime at common law, [15.2.1] circumstances, [10.3.3]
definition, [15.2.1] legislation, [10.3.2], [10.3.4]
drug or instrument, use to life-sustaining treatment, [10.3.3],
procure, [15.2.2] [10.3.4]
failure to advise nature of, [10.3.2]
wrongful birth, [15.5.3] prior discussion of treatment,
wrongful life, [15.5.4] [10.3.3]
father’s right to prevent, [15.2.4] refusal of treatment, [10.3.3],
lawful, [15.2.1], [15.2.2] [10.3.4]
legislation, [15.2.2] registration, [10.3.4]
necessity defence, [15.2.1] revocation, [10.3.4]
prescribed treatment, [8.5.1] signing, [10.3.4]
regulation in Australia, [15.2.2] undue influence, [10.3.3]
substitute decision-maker, limits, what is, [10.3.2]
[8.5.1] witnessing, [10.3.4]
unlawful, [15.2.1] Apology
Access to records see Medical admission of liability, whether,
records [4.9.1]
Advance care planning, [10.3.1] medical error, for, [4.9.1]
Advance directive Artificial reproduction
binding, requirements for access to, [15.3.5]
common law, [10.3.3] artificial insemination, [15.3.1]
legislation, [10.3.4] death of donor, after, [15.3.6]
circumstances where not binding, code of practice, [15.3.2]
[10.3.4] corpse, harvesting gametes from,
common law, [10.3.2], [10.3.3] [15.3.6]
competence of patient, [10.3.3] eligibility criteria, [15.3.5]
consent to treatment, [10.3.5] ethical guidelines, [15.3.2]
decision-making where, [2.2.7], human cloning, [15.3.2], [15.3.3]
[8.1.1] in vitro fertilisation, [15.3.2]
health professional disregarding licensing, [15.3.2]
immunity, [10.3.6] limits on access to, [15.3.5]
life-sustaining treatment, prohibited practices, [15.3.2]
[10.3.3] sex selection of embryos, [15.3.4]

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Artificial reproduction—cont’d refusal see also Refusal of

surrogacy, [15.4.1] treatment
Assault and battery advance directive, [10.3.3]
advance directive, ignoring, parents of child, [9.5.1]
[10.3.6] Burden of proof
treatment without consent, Australian legal system, [3.6.2]
[6.1.2], [6.2.4] causation, [4.4.1]
Australian legal system meaning, [3.6.2]
common law, [3.3.2]–[3.3.5] negligence, [4.1.1]
court system, [3.4.1]–[3.4.5]
equity, [3.3.3]–[3.3.5] Cancer registries, [14.2.2]
government, systems of, [3.1.1] Capacity see Competence
international law, [3.3.7] Cases
legislation, [3.3.6] illustrating law, [2.1.3], [2.2.1]–
separation of powers, [3.1.2] [2.2.10]
sources of law, [3.3.1] internet
sovereignty of British crown, finding on, [1.3.1]
[3.1.1], [3.3.2] referencing cases reported on,
[1.2.2]
Best interests of patient referencing, [1.2.2]
child, [8.2.2], [9.3.2] Causation
checklist, [9.3.2] burden of proof, [4.4.1]
refusal of treatment, [2.2.5], decreasing likelihood of treatment
[9.4.2] succeeding, [4.4.2]
guardian, decisions by, [8.2.2] economic loss as injury, [4.4.2]
requirement to consider, [8.1.1], factual, [4.4.1]
[8.2.2] legal, [4.4.1]
test of, [8.2.2] medical injury, [4.4.2]
treatment without consent, remoteness, [4.4.3]
[6.4.2] standard of proof, [4.4.1]
emergency, [6.4.1] Certificate
who decides, [2.2.5] birth, [20.3.1]
Birth death, [20.4.1]–[20.4.3]
notification of, [20.3.1] fitness to drive see Fitness to
stillbirth, [20.3.2] drive assessment
wrongful, [15.5.3] refusal of treatment see Refusal
Blood donation of treatment
adult, [12.2.1] sickness, [20.1.1]–[20.1.5]
child, [12.3.1] Child
Blood tests abuse, reporting, [9.8.1], [19.3.2]
motor accidents, after, [19.4.1] best interests, [8.2.2], [9.3.2]
consent, whether required, checklist, [9.3.2]
[6.4.5] refusal of treatment, [2.2.5],
Blood transfusion [9.4.2]
child, emergency treatment competence, [7.1.2], [9.2.1]
refusal by parents, [9.5.1] Gillick test, [9.2.1], [9.2.2]
without consent, [9.5.1] legislation dealing with, [9.2.3]

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Child—cont’d emergency treatment, [9.5.1]

mature minor test, [9.2.1] parents, by, [2.2.5], [9.4.2],
responsibility to check, [9.2.2] [9.5.1]
consent by child, [7.1.2], [9.2.1]– parents’ consent overriding,
[9.2.3] [9.4.1]
consent by parent/s, [9.3.1] sexual relationship, telling
best interests of child, [2.2.5], parents about, [2.2.3]
[8.2.2], [9.3.2] treatment without consent, [9.5.1]
divorced or separated parents, young person, definition, [9.1.1]
[9.3.3] Clinical practice
limits, [9.3.5] cases illustrating law, [2.1.3]–
non-therapeutic medical [2.2.10]
treatments, [9.3.5] ethical issues, [2.1.1], [2.1.2]
overriding refusal by child, explaining and justifying
[9.4.1] decisions, [2.1.1]
person in loco parentis, [9.3.4] identifying legal issues, [2.1.1]
contraception, prescribing for, Common law
[2.2.3] doctrine of reception, [3.3.2]
decisions about own care, [2.2.3], equity and, [3.3.3]–[3.3.5]
[2.2.5] conflicting principles, [3.3.4]
competence, [7.1.2], [9.2.1]– human rights, protection of,
[9.2.3] [3.7.3]
definition, [9.1.1] Judicature Act system, [3.3.5]
destruction, [15.2.3] overview, [3.3.2]
donation of tissue see Organ and precedent, doctrine of, [3.3.2],
tissue donation [3.5.1]
emergency treatment, [9.5.1] Competence
Gillick competence test, [9.2.1], ability to weigh information and
[9.2.2] make decision, [7.1.6]
guardianship see Guardianship advance directive, making,
incompetence, presumption of, [10.3.3]
[7.1.2], [9.2.1] assessing, [7.1.1]
medical records time for, [7.1.7]
access to, [9.6.2] belief in treatment information,
privacy, [9.6.1] [7.1.5]
non-therapeutic medical child, [9.2.1]
treatments, [9.3.5] Gillick test, [9.2.1], [9.2.2]
guardianship authority legislation dealing with,
approval, [9.3.6] [9.2.3]
who may give consent, [9.3.5] mature minor test, [9.2.1]
organ donation see Organ and presumption of incompetence,
tissue donation [7.1.2], [9.2.1]
privacy over records, [9.6.1] responsibility to check, [9.2.2]
refusal of treatment, [9.4.1] consent, to give, [6.2.2], [7.1.1]
best interests, [2.2.5], [9.4.2] decisions requiring more
court overriding parents competence, [7.1.9]
refusal, [9.4.2] functional test, [7.1.3]

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Competence—cont’d Consent to treatment

incompetent patient, [8.1.1] advance directive, [10.3.5]
guardianship see assault/battery where lack of,
Guardianship [6.1.2], [6.2.4]
persons responsible see attorney, by, [8.3.5]
Persons responsible body inviolability, principle of,
power of attorney see Power of [6.1.1]
attorney child see Child
lack of, [2.2.4], [6.2.2] coercion into giving, [6.2.3]
outcome approach, [7.1.3] communication, adequacy of,
presumption as to [6.2.5]
adults, [6.2.2], [7.1.2] competence to give see
children, [7.1.2], [9.2.1] Competence
serious decisions, [7.1.9] conduct, implied by, [6.1.3]
status-based approach, [7.1.3] definition, [6.1.1]
statutory test, [7.1.3] donation of tissue see Organ and
test for, [7.1.3], [7.1.8] tissue donation
time for assessing, [7.1.7] each procedure or stage in
understanding of treatment treatment, [6.1.5], [6.1.8]
information, [6.2.5], [7.1.4] electroconvulsive therapy,
Complaints see Healthcare [13.4.2]
complaints emailed form, [6.1.6]
Confidentiality see also Privacy emergency, [6.4.1]
breach of, [16.3.1] child, [9.5.1]
defences, [16.3.4] express, [6.1.3]
law enforcement agency, faxed form, [6.1.6]
disclosure to, [19.2.4] form of, [6.1.3]
notifiable disease, [14.5.1], grievous bodily harm, causing,
[16.3.4] [6.1.11]
public interest, [16.3.4] guardian or guardianship
child’s medical records, [9.6.1] authority, by, [8.2.2]
crimes, reporting, [19.3.1] implied, [6.1.3]
child abuse, [19.3.2] incapacity to give see
domestic violence, [19.3.3] Competence
duty of, [16.1.1], [16.2.1] information, provision of,
forced disclosure, [16.3.4] [6.3.1]–[6.3.9]
legal obligation, [16.3.1] choice not to receive, [2.2.5],
circumstances imposing, [6.3.6]
[16.3.3] general guidelines, [6.3.4]
necessary quality of material risks, [6.3.2], [6.3.6]
confidence, [16.3.2] nature and effects of treatment,
notifiable disease [6.3.1]
breach, [14.5.1], [16.3.4] non-English speaking patient,
contact tracing, [14.5.2] [6.2.5], [6.3.8]
joint consultation, sharing standard of care, [4.3.2]
result, [14.5.3] tort law, effect, [6.3.9]
professional obligation, [16.2.1] type of information, [6.3.4]

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Consent to treatment—cont’d substitute decision-maker not

information, provision of—cont’d available, [6.4.2]
waiver of right to, [6.3.6] understanding, [6.2.5], [7.1.4]
withholding information, undue influence, [6.2.3]
[6.3.5] validity, [6.1.7], [6.2.1]
written information sheet, period of, [6.1.7]
[6.3.6] refusal to hear risks, [2.2.5]
limits, [6.1.11] requirements for, [6.2.1]–
mentally ill patient, [13.2.1] [6.2.5]
electroconvulsive therapy, voluntariness, [6.2.3]
[13.4.2] what is, [6.1.1]
non-psychiatric treatments, when required, [6.1.2]
[13.4.5] withdrawal of, [6.1.10]
psychosurgery, [13.4.3] written, [6.1.4]
refusal of, [2.2.2] Contraception
treatment without, [6.4.4], child, prescribing for, [2.2.3]
[13.3.1], [13.3.2] prescribed treatment, [8.5.1]
non-English speaking patient, substitute decision-maker, limits,
[6.2.5], [6.3.8] [8.5.1]
organ donation see Organ and Contract
tissue donation agreement to provide health
period of validity, [6.1.7] services <JB.[5.2.1]
person responsible, by, [8.4.2] binding obligations, [5.2.4]
policies on, [6.1.4] breach of, [5.2.6]
psychosurgery, [13.4.3] consideration, [5.2.3]
responsibility for obtaining, damages for breach, [5.2.6]
[6.1.8] duties under, [5.2.4]
right to refuse, [6.1.9] whether overridden by other
risks, information about, [6.3.1] laws, [5.2.7]
all risks, [6.3.3] express terms, [5.2.4]
choice not to be informed, form, [5.2.2]
[2.2.5], [6.3.6] formal, [5.2.2]
material risks, [6.3.2] formation, [5.2.3]
written information sheet, implied terms, [5.2.4], [5.2.5]
[6.3.6] informal, [5.2.2]
self-determination principle, intention to enter legal
[6.1.1] relationship, [5.2.3]
specificity, [6.2.4] nature of, [5.2.1]
treatment without offer and acceptance, [5.2.3]
child, [9.5.1] parol contract, [5.2.2]
emergency, [6.4.1], [9.5.1] terms, [5.2.4]
mentally ill patient, [6.4.4], what is, [5.2.1]
[13.3.1], [13.3.2] Contributory negligence, [4.6.2]
necessary for patient’s intoxication, [4.6.2]
wellbeing, [6.4.2] reduction of damages, [4.6.2]
substitute decision-maker Coroner
available, [6.4.3] reporting deaths to, [2.2.4], [10.1.3]

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Coroner—cont’d completion of, [20.4.2]

role of, [3.4.4], [10.1.3] coroner, reporting to, [2.2.4],
Corpse [10.1.3]
harvesting gametes from, [15.3.6] corpse
organ donation see Organ and harvesting gametes from,
tissue donation [15.3.6]
right to possession of, [12.1.2] right to possession of, [12.1.2]
Courts definition, [10.1.1], [12.4.1]
Australian court system, [3.4.1] donation of tissue after
burden of proof, [3.6.2] conflict between wishes of
coroner’s courts, [3.4.4] deceased and their family,
District (County) Courts, [3.4.3] [12.4.4]
end-of-life decisions, [11.2.1] consent to, [12.4.2]
Family Court, [3.4.2] consent unable to be sought,
Federal Court, [3.4.2] [12.4.5]
Federal Magistrates’ Court, definition of death, [12.4.1]
[3.4.2] relatives’ consent after death,
hierarchy, [3.4.1] [12.4.3]
federal courts, [3.4.2] end-of-life decisions see End-of-
state and territory courts, life decisions
[3.4.3] principle of double effect,
High Court, [3.4.1], [3.4.2], [10.4.3]
[3.4.3] refusal of treatment leading to,
judicial functions, [3.1.2] [10.4.1]
Magistrates’ (Local) Courts, reportable, [10.1.3]
[3.4.3] suicide, [10.2.3]
parens patriae jurisdiction, assisting, [10.2.3], [10.4.1]
[8.2.1], [8.4.1], [8.5.1] withdrawal of life-sustaining
standard of proof, [3.6.3] treatment, [10.4.1]
Supreme Courts, [3.4.3] decision as to see End-of-life
system of proof, [3.6.1] decisions
tribunals, [3.1.2], [3.4.5] homicide, whether, [10.4.2]
Decisions about treatment
Damages Adult Guardian, [8.4.1]
breach of contract, [5.2.6] advance care planning, [10.3.1]
negligence, [4.5.1] advance directive see Advance
contributory, reduction for, directive
[4.6.2] best interests of patient, [8.1.1],
economic loss, [4.5.1] [8.2.2]
non-economic loss, [4.5.1] child, [2.2.5], [8.2.2], [9.3.2],
reduction of amount [9.4.2]
recoverable, [4.5.1] emergency treatment, [6.4.1]
Death guardian, decisions by, [8.2.2]
accelerating dying process, test of, [8.2.2]
[10.4.3] treatment without consent,
certificate, [20.4.1]–[20.4.3] [6.4.1], [6.4.2]
cause of death on, [20.4.3] child see Child

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Decisions about treatment—cont’d employment, [21.6.1]

competence see Competence Human Rights and Equal
consent see Consent to Opportunity Commission,
treatment [3.7.2]
demanding treatment, [10.2.4] infertility treatment, access to,
end-of-life decisions see End-of- [15.3.5]
life decisions District (County) Courts, [3.4.3]
guardian see Guardianship Doctors see Health professionals
incapacity to make, [2.2.4], Domestic violence
[6.2.2], [8.1.1] reporting suspected cases,
mental illness, person with, [19.3.3]
[2.2.2] Drug or alcohol dependence
persons responsible, [8.4.1], health professional
[8.4.2], [8.5.1] duty to report, [5.5.4]
power of attorney see Power of policies dealing with, [5.5.4]
attorney reporting by another, [5.5.5]
prescribed treatments, [8.5.1] Drugs and poisons
refusal see Refusal of treatment abortion, use to procure, [15.2.2]
special treatments, [8.5.1] accelerating dying process,
statutory health attorney, [8.4.1], [10.4.3]
[8.4.2] blood tests after motor accidents,
substitute decision-makers, [19.4.1]
[2.2.4], [8.1.1] consent, whether required,
access to medical records, [6.4.5]
[17.3.4] drugs of dependence
attorneys see Power of administration of, [18.4.1]
attorney form of prescription, [18.4.3]
disagreement between, precautions when prescribing,
[8.6.2] [18.4.2]
end-of-life decisions see End- prescription of, [18.4.1]–
of-life decisions [18.4.3]
guardians see Guardianship laws governing use of, [18.1.1]
limits, [8.5.1] off-label use, [18.6.1]
persons responsible, [8.4.1], prescription, [2.2.9], [18.6.1]
[8.4.2] telling patient, [18.6.2]
prescribed/special treatments, palliative care, [10.4.3]
[8.5.1] prescription
Disclosure of medical error computer-generated, [18.3.1]
apology, [4.9.1] details on stationery, [18.2.2]
fiduciary duty, [4.8.2] directions for use, [18.2.3]
legal requirement, [4.8.2] drugs of dependence, [18.4.1]–
open disclosure, [4.8.1]–[4.8.3] [18.4.3]
professional codes requiring, drugs requiring, [18.1.3]
[4.8.3] legibility, [18.2.3]
Discrimination legislation, [18.1.1]
anti-discrimination legislation, off-label, [2.2.9], [18.6.1],
[3.7.2] [18.6.2]

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Drugs and poisons—cont’d Australian Industrial Relations

prescription—cont’d Commission, [21.3.2]
own family, for, [18.7.1] Australian workplace agreements
self, for, [18.7.1], [18.7.2] (AWAs), [21.3.1], [21.3.2]
storage of stationery, [18.2.1] awards, [21.3.1]
writing, [18.2.3] collective bargaining, [21.3.2]
regulation of, [18.1.1] conditions, [21.3.1], [21.3.2]
schedules, [18.1.2] contractor/employee distinction,
special treatments, [8.5.1] [21.1.1]
storage, [18.5.1] test, [21.1.2]
substitute decision-maker, limits, discrimination, [3.7.2], [21.6.1]
[8.5.1] employment contract, [21.1.1]
Duty of care contract for services
concept of, [4.2.1] distinguished, [21.1.1]
doctors, to patients, [4.2.2] implied terms, [21.2.1]
Donoghue v Stevenson, [4.2.1] enterprise bargaining, [21.3.1]
emergency, to attend, [4.2.6] industrial relations law, [21.3.1]
health professionals, [4.2.2]– federal system, [21.3.2]
[4.2.6] leave entitlements, [21.3.2]
neighbour principle, [4.2.1] occupational health and safety,
patients, to, [4.2.2], [4.2.3] [21.5.1]
people other than patients, to, WorkChoices system, [21.3.2]
[4.2.4] workers’ compensation, [21.4.1]
reasonable foreseeability, [4.2.1] claim, making, [21.4.3]
unborn child, to, [4.2.5] legislation, [21.4.1]
when arises, [4.2.3] who is covered by, [21.4.2]
Workplace Authority, [21.3.2]
Economic loss Workplace Ombudsman,
causation, [4.4.2] [21.3.2]
damages for, [4.5.1] End-of-life decisions
injury, whether, [4.4.2] accelerating dying process,
Electroconvulsive therapy, [10.4.3]
[13.4.2] advance directive, [10.3.4]
Emergency court, [11.2.1]
duty to attend, [4.2.6] enduring attorney, [11.4.1]
‘good samaritan’ protection, guardian, [11.3.2]
[4.2.6] guardianship authority, [11.3.1]
treatment without consent, health professionals, [11.6.1]–
[6.4.1] [11.6.3]
advance directive, disregarding, futile treatment, [2.2.10],
[10.3.4] [10.2.4], [11.6.2]
child, [9.5.1] refusal to treat, [10.2.4],
Employment [11.6.1]
Australian fair pay and conditions withdrawal of treatment,
standard (AFPCS), [21.3.2] [10.2.4], [11.6.1]
Australian Fair Pay Commission, incompetent patient, for, [11.1.1]
[21.3.2] person responsible, [11.5.1]

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End-of-life decisions—cont’d Futile treatment

religious faith, consideration of, care in assessing, [11.6.2]
[11.3.2] exception to principle against,
substitute decision-maker, [2.2.4], [11.6.2]
[8.6.1], [11.1.1]–[11.5.1] refusal to provide, [10.2.4],
suicide, [10.2.3] [11.6.2]
assisting, [10.2.3], [10.4.1] terminal illness, [2.2.10],
withdrawal of life-sustaining [10.2.4], [11.6.2]
treatment, [10.4.1]
homicide, whether, [10.4.2] Gender reassignment
incompetent patient, [11.1.1] child, who may give consent,
right of doctor, [10.2.4], [9.3.5]
[11.6.1] Government
substitute decision-maker, Australian systems of, [3.1.1]
[11.1.1]–[11.5.1] separation of powers, [3.1.2]
Equity Guardianship
common law and, [3.3.3]–[3.3.5] Adult Guardian, [8.4.1]
conflicting principles, [3.3.4] application for, [8.2.1]
Judicature Act system, [3.3.5] decision-making, [8.1.1], [8.2.2],
laws of, [3.3.3] [8.5.1]
Ethics best interests of patient, [8.2.2]
cases illustrating law and, consent to treatment, [8.2.2]
[2.1.3]–[2.2.10] end-of-life decisions, [11.3.1],
identifying ethical issues, [2.1.1] [11.3.2]
relationship with law, [2.1.2] limit of powers, [8.5.1]
principles, [8.2.2]
False or misleading information guardian, [8.2.1]
drugs, gaining access to, [2.2.9] access to medical records,
medico-legal reports, [20.5.4] [17.3.4]
Family Court, [3.4.2] court’s power to appoint,
Federal Court, [3.4.2] [8.2.1]
Federal Magistrates’ Court, decision-making, [8.2.2],
[3.4.2] [8.5.1]
Fiduciary duty end-of-life decisions, [11.3.2]
disclosure of medical error, refusal of treatment certificate,
[4.8.2] use of, [11.3.2]
doctor-patient relationship, guardianship authority, [8.2.1]
[5.3.2] access to medical records,
nature of, [5.3.1] [17.3.4]
Fitness to drive assessment decision-making, [8.2.2],
doctor’s responsibilities, [20.2.3] [8.5.1]
driver’s responsibilities, [20.2.2] end-of-life decisions, [11.3.1]
examination, request for, [20.2.5] non-therapeutic treatment of
factors to be considered, [20.2.4] child, consent to, [9.3.6]
information about, [20.2.1] legislation, [8.2.1], [8.2.2]
interaction with patient, [20.2.7] parens patriae jurisdiction,
privacy law, [20.2.6] [8.2.1], [8.4.1], [8.5.1]

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Guardianship—cont’d legislation, [5.4.1]

Public Guardian, [8.2.1] response by authorities, [5.4.4]
end-of-life decisions, [11.3.1] what are, [5.4.1]
what is, [8.2.1] who can make, [5.4.2]
Healthcare contract see Contract
Health information see also High Court, [3.4.1], [3.4.2], [3.4.3]
Information HIV/AIDS
confidentiality see advance directive re treatment,
Confidentiality [2.2.7]
definition, [17.1.1] compulsory testing and treatment,
law enforcement agencies, giving [14.4.1]
to see Law enforcement confidentiality
agencies breach, [14.5.1]
laws applicable to, [17.1.2] contact tracing, [14.5.2]
privacy see Privacy joint consultation, sharing
records see Medical records result, [14.5.3]
Health professionals duty of care to sexual partners,
confidentiality, duty of see [4.2.4]
Confidentiality infecting person with, whether
contract see Contract crime, [14.6.1]
discipline, [5.5.1] information to patients, [14.3.1]
grounds for, [5.5.2] notifiable disease, [14.2.1]
legislation providing for, Hormonal treatment
[5.5.1] child, who may give consent,
duty of care see Duty of care [9.3.5]
mental impairment Hospital
duty to report, [5.5.4] vicarious liability for employees,
policies, [5.5.4] [4.7.1]
reporting by another, [5.5.5] Human rights
privacy, duty of see Privacy anti-discrimination legislation,
records see Medical records [3.7.2]
refusal to treat patient see common law protection, [3.7.3]
Refusal to treat constitutional protection, [3.7.1]
registration of, [5.5.1] Human Rights and Equal
sexual relationship with client Opportunity Commission,
breach of fiduciary duty, [3.7.2]
whether, [5.3.2] legislative recognition, [3.7.2]
policies, [5.5.3] UN Declaration, [3.7.2]
professional misconduct, Human tissue
whether, [5.5.3] corpse, right to possession of,
reporting, [5.5.3] [12.1.2]
standard of care see Standard definition, [12.1.1]
of care donation see Organ and tissue
Health records see Medical donation
records non-regenerative, [12.1.1]
Healthcare complaints ownership of, [12.1.2]
grounds for making, [5.4.3] regenerative, [12.1.1]

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Hysterectomy consent, whether required,

child, who may give consent, [9.3.5] [6.4.5]
prescribed treatment, [8.5.1] child abuse, reporting to, [9.8.1],
substitute decision-maker, limits, [19.3.2]
[8.5.1] definition, [19.1.1]
health information, providing to,
Indigenous Australians [19.2.1]
Australian law, subject to, [3.2.1] breach of privacy, [19.2.4]
recognition of indigenous law, handling requests, [19.2.6]
[3.2.1] search warrant, [19.2.2]
Infectious diseases see Notifiable situations requiring, [19.2.4]
diseases subpoena, [17.3.4], [19.2.3]
Infertility treatment see Artificial suspected unlawful activity,
reproduction [16.4.9]
Information type of information, [19.2.5]
concealing from patient, [2.2.8] list of, [19.1.1]
confidentiality see reporting crimes to, [19.3.1]
Confidentiality child abuse, [9.8.1], [19.3.2]
consent, in relation to see domestic violence, [19.3.3]
Consent to treatment serious offences, [19.3.1]
health information, [17.1.1] Legal referencing
privacy see Privacy cases, [1.2.2]
records see Medical records legislation, [1.2.3]
notifiable conditions, about, what is, [1.2.1]
[14.3.1] Legislation
privacy see Privacy Acts, [3.3.6]
relatives and friends, providing Bills, [3.3.6]
to, [2.2.1], [16.4.10] delegated legislation, [3.3.6]
risks, about see Consent to health matters, [3.8.1]
treatment internet, finding on, [1.3.2]
selectively revealing, [2.2.8] referencing, [1.2.3]
standard of care for providing, what is, [3.3.6]
[4.3.2] Life-sustaining treatment
International law advance directive, [10.3.3],
enactment in Australia, [3.3.7] [10.3.4]
nature of, [3.3.7] child
Internet best interests of, [2.2.5]
cases reported on emergency, [9.5.1]
finding, [1.3.1] refusal, [9.4.1], [9.4.2]
referencing, [1.2.2] definition, [11.1.1]
finding law on emergency treatment without
cases, [1.3.1] consent, [6.4.1]
legislation, [1.3.2] advance directive, disregarding,
[10.3.4]
Law enforcement agencies child, [9.5.1]
blood tests after motor accidents, refusal see Refusal of treatment
[19.4.1] suicide prevention, [10.2.3]

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Life-sustaining treatment—cont’d information to be included,

withdrawal of, [10.4.1] [17.2.2]
advance directive, [10.3.4] law enforcement agencies, giving
court consent, [11.2.1] to see Law enforcement
decision as to see End-of-life agencies
decisions laws applicable to, [17.1.2]
homicide, whether, [10.4.2] legislation, [17.2.1]
incompetent patient, [11.1.1] mistake in, [17.2.3]
right of doctor, [10.2.4], ownership, [17.3.1]
[11.6.1] partnership, practitioners in,
[17.3.1]
Magistrates’ (Local) Courts, privacy see Privacy
[3.4.3] refusal of access, [17.3.3]
Medical error retention of, [17.4.1]
apology, [4.9.1] right of access to, [17.3.1],
whether admission of liability, [17.3.2]
[4.9.1] search warrant, seizure under,
open disclosure, [4.8.1]–[4.8.3] [19.2.2]
fiduciary duty, [4.8.2] storage, [17.4.2]
legal requirement, [4.8.2] subpoena to produce, [17.3.4],
professional codes requiring, [19.2.3]
[4.8.3] transfer between service
Medical records providers, [17.3.4]
access to, [17.3.2] when should be made, [17.2.1]
child’s records, [9.6.2] Medico-legal reports
guardian, [17.3.4] contents, [20.5.5]
other service providers, expert witnesses, [20.5.4]
[17.3.4] false, misleading or inaccurate,
refusal, [17.3.3] [20.5.4]
right of, [17.3.1], [17.3.2] fees for, [20.5.6]
statutory authorities, [17.3.4] information to be included,
substitute decision-makers, [20.5.5]
[17.3.4] legal duties, [20.5.3], [20.5.4]
amendment, [17.2.3] policies on, [20.5.2]
child professional duties, [20.5.2]
access to, [9.6.2] situations requiring, [20.5.1]
privacy, [9.6.1] writing, [20.5.2], [20.5.3]
confidentiality see Mental illness
Confidentiality community care orders, [13.3.2]
contents, [17.2.1], [17.2.2] competence see Competence
deceased patients consent to treatment, [13.2.1]
access by representatives, electroconvulsive therapy,
[17.3.4] [13.4.2]
retention of, [17.4.1] non-psychiatric treatments,
definition, [17.1.1] [13.4.5]
destruction, [17.4.3] psychosurgery, [13.4.3]
duty to provide, [5.2.3] definition, [13.1.1]

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Mental illness—cont’d contributory, [4.6.2]

electroconvulsive therapy, damages, [4.5.1]
[13.4.2] defences, [4.6.1]–[4.6.3]
guardianship see Guardianship duty of care, [4.2.1]
involuntary treatment, [13.3.1], emergency, to attend, [4.2.6]
[13.3.2] health professionals, [4.2.2]–
assessment criteria, [13.3.1] [4.2.6]
seclusion and restraint, [13.4.4] patients, to, [4.2.2], [4.2.3]
types of orders, [13.3.2] people other than patients, to,
legislation, [13.1.1] [4.2.4]
non-psychiatric treatments, reasonable foreseeability,
[13.4.5] [4.2.1]
power of attorney see Power of unborn child, to, [4.2.5]
attorney when arises, [4.2.3]
prescribed treatments, [8.5.1] meaning, [4.1.1]
substitute decision-maker, open disclosure of medical error,
limits, [8.5.1] [4.8.1]–[4.8.3]
prohibited treatments, [13.4.1] reasonable foreseeability test,
psychiatric treatment orders, [4.2.1]
[13.3.2] refusal to treat
psychosurgery, [13.4.3] death, causation, [4.4.1]
prohibition in NT, [13.4.1] lack of qualification, [4.3.3]
regulation, [13.4.3] standard of care, [4.3.1]–[4.3.3]
refusal of treatment, [2.2.2] diagnosis and treatment, [4.3.1]
restraint of patients, [13.4.4] informing patients, [4.3.2]
seclusion of patients, [13.4.4] junior health professionals,
treatment without consent, [4.3.3]
[6.4.4], [13.3.1], [13.3.2] vicarious liability, [4.7.1]
voluntary treatment, [13.2.1] voluntary assumption of risk,
Mental impairment [4.6.3]
competence see Competence Notifiable diseases
health professional cancer registries, [14.2.2]
duty to report, [5.5.4] confidentiality
policies dealing with, [5.5.4] breach, [14.5.1], [16.3.4]
reporting by another, [5.5.5] contact tracing, [14.5.2]
Misprision of felony, [19.3.1] joint consultation, sharing
result, [14.5.3]
Negligence infecting person with, whether
apology, [4.9.1] crime, [14.6.1]
Bolam standard, [4.3.1] information to patients, [14.3.1]
burden of proof, [4.1.1] legislation, [14.2.1]
causation, [4.4.1]–[4.4.3] listed diseases, [14.2.1]
decreasing likelihood of requirements, [14.2.1]
treatment succeeding, [4.4.2] testing and treatment, [14.4.1]
remoteness, [4.4.3] coercive orders, [14.4.1]
changes to laws, [4.1.2] who must notify, [14.2.1]
claim in, [4.1.1]

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Obiter dicta, [3.5.1] refusal of treatment see Refusal

Occupational health and safety of treatment
authorities, [21.5.1] withdrawal of life-sustaining
employee duties, [21.5.1] treatment, [10.4.2]
employer duties, [21.5.1] Parens patriae jurisdiction, [8.2.1],
legislation, [21.5.1] [8.4.1], [8.5.1]
Organ and tissue donation Persons responsible
blood Adult Guardian, [8.4.1]
adult, [12.2.1] decision-making by, [8.4.2],
child, [12.3.1] [8.5.1]
child, by best interests of patient, [8.4.2]
blood, [12.3.1] limit of powers, [8.4.1], [8.5.1]
bone marrow, [9.3.5] end-of-life decisions, [11.5.1]
non-regenerative tissue, relative, definition, [8.4.1]
[12.3.3] statutory health attorney, [8.4.1],
regenerative tissue, [12.3.2] [8.4.2]
death, after who can be, [8.4.1]
conflict between wishes of Power of attorney
deceased and their family, attorney, [8.3.1]
[12.4.4] decision-making, [8.1.1], [8.3.5],
consent to, [12.4.2] [8.5.1]
consent unable to be sought, consent to treatment, [8.3.5]
[12.4.5] controversial matters, [8.3.4]
definition of death, [12.4.1] duty to follow instructions,
relatives’ consent after death, [8.3.5]
[12.4.3] end-of-life decisions, [11.4.1]
non-regenerative tissue limit of powers, [8.3.4], [8.5.1]
adult, [12.2.3] donor, [8.3.1]
child, [12.3.3] enduring, over health matters,
definition, [12.1.1] [8.3.1]
incompetent adult, [12.2.4] becoming effective, [8.3.3]
ownership of human tissue, legislation, [8.3.1], [8.3.5]
[12.1.2] multiple attorneys, [8.3.2]
regenerative tissue statutory health attorney, [8.4.1],
adult, [12.2.2] [8.4.2]
child, [12.3.2] Precedent
definition, [12.1.1] doctrine of, [3.3.2], [3.5.1]
incompetent adult, [12.2.4] obiter dicta, [3.5.1]
substitute decision-maker, limits, ratio decidendi, [3.5.1]
[8.5.1] stare decisis, [3.5.1]
Pregnancy see Reproduction
Palliative care Prescribed treatment
accelerating dying process, definition, [8.5.1]
[10.4.3] substitute decision-maker, limits,
pain-killers or sedatives, [10.4.3] [8.5.1]
principle of double effect, Privacy see also Confidentiality
[10.4.3] authorities, [16.4.2]

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Privacy—cont’d standard of, [3.6.3]

breach of system in Australian courts,
law enforcement agency, [3.6.1]
disclosure to, [19.2.4] Psychosurgery
relatives, disclosure to, consent, [13.4.3]
[16.4.10] prohibition in NT, [13.4.1]
sanctions, [16.4.11] regulation, [13.4.3]
child’s medical records, [9.6.1] Public health
access to, [9.6.2] cancer registries, [14.2.2]
duty of, [16.2.1] compulsory testing and treatment,
health information, [16.4.4] [14.4.1]
access to, [16.4.7] confidentiality
collection, [16.4.5] breach, [14.5.1], [16.3.4]
collection without consent, contact tracing, [14.5.2]
[16.4.9] joint consultation, sharing
disclosure, [16.4.8] result, [14.5.3]
disclosure without consent, infecting person with
[16.4.9] communicable disease, [14.6.1]
family histories, [16.4.6] infectious diseases see Notifiable
law enforcement agency, giving diseases
to, [19.2.1]–[19.2.6] information to patients, [14.3.1]
relatives, disclosure to, law, [14.1.1]
[16.4.10] notifiable diseases see Notifiable
use, [16.4.8] diseases
use without consent, [16.4.9] refusal of treatment, overriding,
information privacy principles [10.2.3]
(IPPs), [16.4.2]
legal right to, [16.4.1] Ratio decidendi, [3.5.1]
legislation, [16.4.1]–[16.4.4] Records see Medical records
health professionals, Refusal of treatment
application to, [16.4.3] advance directive, [10.3.3],
information covered by, [10.3.4]
[16.4.4] ignoring, [10.3.6]
operation of, [16.4.2] certificate, [10.3.4]
national privacy principles attorney, use by, [11.4.1]
(NPPs), [16.4.2] guardian, use by, [11.3.2]
patient’s right to, [16.1.1] ignoring, [10.3.6]
professional obligation, [16.2.1], palliative care, not applicable
[16.4.3] to, [11.3.2]
Professional misconduct child, [9.4.1]
discipline, [5.5.1] best interests, [2.2.5], [9.4.2]
grounds for, [5.5.2] court overriding parents
legislation providing for, [5.5.1] refusal, [9.4.2]
sexual relationship with client, parents, by, [2.2.5], [9.4.2],
[5.5.3] [9.5.1]
Proof parents’ consent overriding,
burden of, [3.6.2] [9.4.1]

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Refusal of treatment—cont’d persons responsible, [8.4.1],

competent patient, [10.2.1] [8.4.2]
death resulting from, [10.4.1] relative, definition, [8.4.1]
end-of-life decisions see End-of- Reporting crimes
life decisions child abuse, [9.8.1], [19.3.2]
immunity of health professional, domestic violence, [19.3.3]
[10.4.1] duty, [19.3.1]
incompetent patient, [10.2.2] failure to report, [19.3.1]
life-sustaining treatment, misprision of felony, [19.3.1]
[10.2.1]–[10.2.3] serious criminal offence,
advance directive, [10.3.3], [19.3.1]
[10.3.4] Reports see Medico-legal reports
immunity of health Reproduction
professional, [10.4.1] abortion see Abortion
limits to right, [10.2.3] artificial see Artificial
mentally ill patient, [2.2.2] reproduction
palliative care, [11.3.2] duties of care, [15.5.1]
patients unable to refuse, [10.2.2] embryo, legal status
incompetent, [10.2.2] frozen, [15.1.1]
prisoners and detainees, womb, in, [15.1.2]
[10.2.2] fetus, legal status, [15.1.2]
public interest overriding, human cloning, [15.3.2], [15.3.3]
[10.2.3] in vitro fertilisation see Artificial
right of patient, [6.1.9], [10.2.1] reproduction
suicide, [10.2.3] legal status of gametic material,
assisting, [10.2.3], [10.4.1] [15.1.1]
withdrawal of consent, [6.1.10] prohibited practices, [15.3.2]
Refusal to treat surrogacy, [15.4.1]
death, causation, [4.4.1] wrongful birth, [15.5.3]
emergency, duty to attend, wrongful conception, [15.5.2]
[4.2.6] wrongful life, [15.5.4]
end-of-life decisions, [11.6.1], Reproductive sterilisation
[11.6.2] child, who may give consent,
futile treatment, [2.2.10], [9.3.5]
[10.2.4], [11.6.2] prescribed treatment, [8.5.1]
inappropriate treatment, [10.2.4] substitute decision-maker, limits,
lack of qualification, [4.3.3] [8.5.1]
review of decision, [10.2.4] wrongful conception, [15.5.2]
right of health professional, Risky treatment
[10.2.4] consent see Consent to
Relatives and friends treatment
answering enquiries from, [2.2.1] information about see Consent to
decision-making by, [8.4.1], treatment
[8.4.2] standard of care, [4.3.1]
limits, [8.5.1]
information, providing to, [2.2.1] Sexual relations
breach of privacy, [16.4.10] age of consent, [15.6.1]

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Sexual relations—cont’d balance of probabilities, [3.6.3]

child beyond reasonable doubt, [3.6.3]
age of consent, [15.6.1] causation, [4.4.1]
telling parents about, [2.2.3] Stare decisis, [3.5.1]
doctor-patient Statutory health attorney, [8.4.1],
breach of fiduciary duty, whether, [8.4.2]
[5.3.2] Stillbirth, [20.3.2]
policies dealing with, [5.5.3] Subpoena
professional misconduct, challenging, [19.2.3]
whether, [5.5.3] health information, to produce,
reporting, [5.5.3] [17.3.4], [19.2.3]
Sickness certificate Substitute decision-makers see
contents, [20.1.4] Decisions about treatment
dating, [20.1.5] Suicide
doctor’s responsibility, [20.1.2] assisting, [10.2.3], [10.4.1]
employee’s responsibilities, not a crime, [10.2.3]
[20.1.3] prevention of, [10.2.3]
information to be included, Supreme Courts, [3.4.3]
[20.1.4] Surrogacy, [15.4.1]
legal document, [20.1.2]
non-medical language, [20.1.4] Terminal illness
policies dealing with, [20.1.1] accelerating dying process,
revealing patient information, [10.4.3]
[20.1.2] end-of-life decisions see End-of-
when required, [20.1.1] life decisions
Special treatment futile treatment, [2.2.10],
definition, [8.5.1] [10.2.4], [11.6.2]
substitute decision-maker, limits, refusal of treatment see Refusal
[8.5.1] of treatment
Specialists Therapeutic relationship
duty of care to patients, [4.2.3] contract see Contract
Standard of care non-tortious legal duties, [5.1.1]
Bolam standard, [4.3.1] Third parties
diagnosis and treatment, for, answering enquiries from,
[4.3.1] [2.2.1]
health professionals, [4.3.1]– duty of care to, [4.2.4]
[4.3.3] information, providing to, [2.2.1]
informing patients, for, [4.3.2] breach of privacy, [16.4.10]
junior health professionals, Tissue donation see Organ and
[4.3.3] tissue donation
legislation dealing with, [4.3.1] Transplant
peer professional opinion, donation for see Organ and
[4.3.1] tissue donation
state legislation, [4.3.1] removal of tissue for
students, [4.3.3] prescribed treatment, [8.5.1]
test for, [4.3.1] substitute decision-maker,
Standard of proof, [3.6.3] limits, [8.5.1]

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Treatment wrongful conception, [15.5.2]

consent to see Consent to Undue influence
treatment advance directive, [10.3.3]
decisions about see Decisions consent to treatment, [6.2.3]
about treatment
refusal by doctor see Refusal to Voluntary assumption of risk,
treat [4.6.3]
refusal by patient see Refusal of
treatment Workers’ compensation
Tribunals, [3.1.2], [3.4.5] claim, making, [21.4.3]
legislation, [21.4.1]
Unborn child what is, [21.4.1]
abortion see Abortion who is covered by, [21.4.2]
born alive rule, [15.1.2] Wrongful birth, [15.5.3]
child destruction, [15.2.3] Wrongful conception, [15.5.2]
duty of care to, [4.2.5], [15.5.1] Wrongful life, [15.5.4]
embryo, legal status
frozen, [15.1.1] Young person
womb, in, [15.1.2] competence see Child
fetus, legal status, [15.1.2] definition, [9.1.1]

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