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Focus: Health – June 2007

In this issue: we report on the duty owed by employers where workers are exposed to traumatic events; the right to access one's own health information; the meaning of 'exceptional circumstances' when applying the 80/20 rule; the extent of the duty to warn patients pre-surgery; and when a surgical procedure amounts to battery.

• The duty owed by employers where workers are exposed to traumatic events
• Right to access health information not unlimited
• What are 'exceptional circumstances' in the application of the 80/20 rule?
• Court considers the extent of the duty to warn patients pre-surgery
• When will a surgical procedure amount to battery?

The duty owed by employers where workers are exposed to traumatic events

In brief: Health industry employees can be exposed to any number of traumatic events during the course of their employment. Lawyer Sarah Bryden examines a recent decision in Hegarty v Queensland Ambulance Service,¹ in which the Queensland Supreme Court considered whether the program adopted by the Queensland Ambulance Service to reduce the impact of stress-related problems was sufficient to properly identify and assist employees having difficulties dealing with the traumatic events to which they were regularly exposed.

The facts

The plaintiff, Mr Hegarty, was an ambulance officer in rural Queensland from 1984 to 1999. During the course of his work, he attended numerous horrific and traumatic scenes. At trial, the plaintiff relied, in particular, on 20 such events he considered had the greatest effect on him. When the plaintiff left his employment with the Queensland Ambulance Service (QAS) in 1999, he had developed post-traumatic stress disorder and obsessive compulsive disorder.

The plaintiff alleged that the QAS was responsible for his disorders and commenced proceedings against the QAS claiming damages for negligence, breach of his employment contract and/or breach of QAS's statutory duty to ensure his workplace health and safety. Specifically, the plaintiff alleged that the QAS did not have in place any system, or any sufficient system, of counselling and/or psychological support or treatment for the more-than-trivial risk to which he was exposed in the course of his employment.

The defendant, QAS, argued that from approximately 1990 it did have in place an adequate system of counselling and support through a program known as 'Priority One'. This program attempted to reduce the impact of stress-related problems on ambulance officers and their families. There were four elements within the program:

• critical incident stress debriefing (this model of debriefing had been discredited in the late 1990s. The plaintiff was not subjected to it and it did not form part of the case at trial);
• peer support;
• telephone counselling services; and
• face-to-face counselling with a psychologist.

The central issue in this case was the efficacy of this program and the extent to which it had actually been implemented.

The court's decision

The plaintiff and his wife gave evidence at the trial that, on a number of occasions between 1992 and 1996, the plaintiff and his wife had raised concerns with a number of senior officers that the plaintiff was not coping with his duties and that he wanted a transfer to a larger centre. However, the senior officers did not recognise the plaintiff's concerns as possible signs of stress or dysfunction, and did not act on his concerns. The plaintiff was not given a transfer to a larger centre until early in 1997.

Although the Priority One program was intended to provide a framework within which senior ambulance officers could recognise the symptoms of work-related stress via various training programs, the court found that senior officers had not, in fact, received such training. The court found the plaintiff's complaints were such that, if the officers had received the appropriate training, they would have recognised in the plaintiff symptoms of possible dysfunction or stress, and would have suggested that he approach Priority One, or seek other professional assistance.

QAS was found to have breached its duty of care to the plaintiff.

The court held that had the appropriate treatment been commenced and had the plaintiff's symptoms come to the attention of psychiatrists or clinical psychologists at an earlier time and a treatment regime then commenced, the plaintiff would not have suffered to the extent that he subsequently did. Accordingly, his long-term prognosis would have been better. The court, therefore, held that the plaintiff's loss was the loss of a better outcome. The plaintiff was awarded approximately $500,000 in damages.

Conclusion

The court's decision provides a timely reminder to health professionals to review what procedures they have in place to deal with identifying signs of stress and dysfunction in workers and to ensure that those procedures are being followed. 

Right to access health information not unlimited

In brief: Lawyer Jacqueline Goodall reports on two recent cases in which the exceptions to an individual's right to access their health information were considered. In Tomasevic v Cheung², the Victorian Civil and Administrative Tribunal denied an individual access to notes on his medical record prepared by an apprehended violence complainant and transmitted by the police to the alleged perpetrator's treating psychiatrist. In B v Surgeon³, a complainant ultimately accepted their surgeon's offer to provide a copy of the medical record with commercially sensitive documents removed.

Tomasevic v Cheung

Background

Mr Tomasevich had been suspended from his teaching position at a Victorian secondary college in 1999 and been found guilty of making threats to the life of its deputy principal, Mr Brown, for which he received a good behaviour bond. Proceedings for an intervention order by Mr Brown were settled in 2003 when Mr Tomosevich gave private undertakings. In January 2006, Mr Brown alleged that Mr Tomasevich had made telephone contact in contravention of the those undertakings. In a police interview, Mr Brown provided hand-written notes describing the contact incidents. The police, concerned that Mr Tomosevich might be a danger to Mr Brown or himself, contacted his treating psychiatrist, who requested the hand-written notes. The police provided the notes, with a written request that they not be shown to Mr Tomosevich. In treating Mr Tomosevich, the psychiatrist discussed the complaints with him and read him extracts from the notes provided by the police. Mr Tomosevich requested a copy of the notes. The psychiatrist refused the request. Mr Tomosevich lodged a complaint with the Health Services Commissioner, who referred the complaint to the Victorian Civil and Administrative Tribunal (the Tribunal).

The Tribunal's decision

The Tribunal found that the information, although brought into existence for law enforcement and not health purposes, was 'collected' by the psychiatrist to provide a health service, namely to 'assess, maintain or improve the individual's [ie Mr Tomosevich's] health', and thus fell within the definition of 'health information' as governed by the Health Records Act 2001 (Vic).

Under section 27 of the Health Records Act, a health service provider must not give an individual access to their health information if it is subject to confidentiality.

The Tribunal held that health information is subject to confidentiality within the meaning of s27 if it is 'subject to confidentiality' and 'given in confidence' (s27(2)).

Citing the decision in Thwaites v Department of Community Services⁴, which considered the meaning of 'information or matter communicated in confidence' for the purposes of an exception under the Freedom of Information Act 1982 (Vic), the Tribunal found that a communication in confidence may be established based upon 'the understanding of a party communicating in the circumstances surrounding the communication or the very nature of the information'.

The Tribunal held that information, having been provided by the police to the psychiatrist under a clear and direct request that the information not be communicated to Mr Tomosevich, satisfied the first requirement. Having been provided to the treating psychiatrist rather than Mr Tomosevich in an attempt to avoid a potentially dangerous situation, together with the express request not to communicate it to Mr Tomosevich, it had been communicated in confidence.

B v Surgeon

Background

A patient sought a copy of their medical record from their surgeon. The surgeon refused, but offered to make a copy available for viewing under the supervision of a staff member or, alternatively, provide a copy to the patient's surgeon of choice. The patient made a complaint to the Federal Privacy Commissioner (the Commissioner).

Outcome of investigation

The Commissioner conducted a preliminary inquiry under s42 of the Privacy Act 1988 (Cth) to ascertain why the surgeon had refused to provide the complainant with a copy of their medical record. The surgeon argued that he denied access because the patient, not being medically trained, would have difficulty interpreting their medical record, which could result in a misunderstanding about their health. The Commissioner considered this an unsatisfactory reason for denying access, and advised the surgeon that access should generally be provided in the form requested by the complainant. The surgeon offered to provide a copy of the complainant's records, but with commercially sensitive documents removed. The surgeon argued for the removal of copies of consent forms, quote sheets and registration pages, which had been generated with templates specifically designed by the surgeon, and which he did not want to be made available to his competitors.

The complainant accepted the surgeon's offer, and, being satisfied that the surgeon had adequately addressed the complaint, the Commissioner closed the complaint.

Conclusion

An individual's right of access to their own health information is not unlimited. The exceptions address a range of situations.

For example, as shown in Tomasevic, a person may be denied access where the information was given to a health service provider in confidence. The purpose of the collection of the information must be related to the health of the person to whom it relates. However, as demonstrated here, it may have been brought into existence for a non-health related purpose, such as law enforcement, and communicated in confidence in order to protect the safety of a third party.

A person may also be denied access where to do so would reveal evaluative information in connection with a commercially sensitive decision-making process.⁵ In B v Surgeon, the Commissioner was not required to decide whether the documents claimed to be commercially sensitive fell within this or any other exception. We will continue to monitor cases that shed light on the scope of this exception.

What are 'exceptional circumstances' in the application of the 80/20 rule?

In brief: General practitioners are no doubt familiar with the concept of the 80/20 rule; that is, a doctor may be found to have engaged in inappropriate practice if 80 or more professional attendances are rendered on 20 or more days in a 12-month period. Lawyer Jane McCosker reviews the recent decision in Ho v Professional Services Review Committee No 295⁶, where the Federal Court considered the interpretation of the rule.

Background: the legislation and the Committees' review

Doctors Ho and Do are general practitioners (GPs) practising in partnership. In December 2001, the Health Insurance Commission instigated a review of the provision of services by each doctor. The associated committees concluded that each doctor had engaged in 'inappropriate practice' during the periods under review (the referral periods).

'Inappropriate practice' by a GP is defined in s82 of the Health Insurance Act 1973 (Cth) (the Act). The phrase refers, in essence, to conduct that would be unacceptable to the general body of GPs.

Section 106KA(1) of the Act states that, subject to a specified exception, if during a particular period the circumstances in which the relevant services were rendered or initiated constituted a 'prescribed pattern of services', the person under review is taken to have engaged in 'inappropriate practice'. Regulation 10 of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) (the Regulations) declares that if 80 or more professional attendances are rendered on each of 20 or more days in a 12-month period, those professional attendances constitute a prescribed pattern of services for the purposes of s106KA(1). This prescription is informally known as the '80/20 rule'.

Dr Ho had rendered more than 80 professional attendances on 24 days during the relevant referral period, and Dr Do had done so on 56 days.

The exception to s106KA(1) is that if the person under review satisfies the committee that, on a particular day or days during the relevant period, there were 'exceptional circumstances' affecting the rendering or initiating of services by that person, the relevant conduct on that day or those days is not taken to have constituted engaging in inappropriate practice (s106KA(2)).

Regulation 11(a) of the Regulations declares that 'an unusual occurrence causing an unusual level of need for professional attendances' constitutes 'exceptional circumstances' for the purposes of s106KA(2).

Both doctors argued that exceptional circumstances affected their rendering of services on all, or some, of the days in question. The committees did not accept this argument, stating, among other things, that the circumstances the doctors alleged were exceptional were 'on-going' rather than 'intermittent or episodic' and that the doctors could and should have managed those circumstances to limit patient numbers.

The doctors applied for judicial review of the committees' decisions.

The decision of the Federal Court

The Federal Court found in favour of the doctors, ordering that the committees' findings in respect of each doctor be quashed.

The court indicated that the following principles should be applied when interpreting the expression 'exceptional circumstances':

• the relevant circumstances are those of the actual practitioner, not a hypothetical person;
• a person can establish 'exceptional circumstances' by relying on either, or both of, the ordinary meaning of the words and the circumstances prescribed in Regulation 11;
• the ordinary meaning of the word 'exceptional' is 'out of the ordinary course, unusual, special or uncommon';
• the expression requires consideration of all the circumstances together. A combination of factors that are not exceptional in themselves can be exceptional when viewed together;
• equally, 'a single exceptional matter' or 'a combination of exceptional factors' can both constitute 'exceptional circumstances' within the meaning of s106KA(2); and
• 'exceptional circumstances' does not denote only an unexpected occurrence.

The court considered that the committees failed to properly apply these principles, adopting instead an episodic construction of 'exceptional circumstances' that was narrower than the meaning of those words in either s106KA(2) or Regulation 11. In so doing, the court found, the committees committed jurisdictional errors.

The alleged 'exceptional circumstances'

The court found that the following circumstances relied on by the doctors, when considered in combination, could have been unusual occurrences of the kind referred to in Regulation 11(a), so triggering the exception in s106KA(2):

• prior to the commencement of the referral periods, the doctors had worked in partnership with a third doctor. In late December 1999, the third doctor left the practice, taking only 909 patient files out of a total of 11,258;
• the new two-doctor practice and the referral periods began on the first day after the Christmas break, when a large number of patients needed to be seen;
• the doctors looked for, but were unable to find, a full-time replacement for the third doctor, partly because corporatisation of medical practices was affecting the availability of suitable recruits; and
• on two days during the relevant referral period, Dr Do went home sick, leaving only Dr Ho to see the practice's patients.

The court emphasised that the fact that some or all of the above factors may have been addressed by practice management techniques did not mean that they were not unusual, and that it was this quality – their unusual character – to which Regulation 11(a) was directed.

Conclusion

This decision provides an indication of the kinds of exceptional circumstances where a breach of the 80/20 rule will not amount to inappropriate practice. It also highlights the importance of professional services review committees applying the correct legal principles when assessing whether practitioners have engaged in inappropriate practice.

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Court considers the extent of the duty to warn patients pre-surgery

In brief: The Supreme Court of New South Wales was recently asked to consider whether a warning given to a patient pre-surgery was sufficient in circumstances where a complication occurred and the surgeon's handling of the complication left the patient with continuing problems. Senior Associate Alana Petty and Articled Clerk Jeremy Collins report on the decision in Marko v Falk.⁷

Facts

The patient was referred to Dr Falk for the removal of her gallbladder. In light of the patient's medical history, it was agreed at the pre-operative consultation that the patient would also undergo a colonoscopy (which the patient had expressly requested) and an endoscopy (which Dr Falk had recommended). Given the patient's fear of anaesthetics and her reluctance to take time off from work, Dr Falk agreed to perform all three procedures consecutively while the patient was under a general anaesthetic.

In undertaking the endoscopy, Dr Falk discovered an unexpected polyp (a small growth), which he removed by way of endoscopic snare. Unfortunately, the duodenum was perforated in the course of the procedure, sepsis resulted and the patient was left with continuing problems.

Although the parties could not precisely recall what was said at the pre-operative consultation, it was accepted that it was Dr Falk's usual practice to explain to patients that there was a risk of bleeding and perforation during an endoscopy, but that this was rare. Dr Falk conceded that he would not have mentioned the possibility of polyps being found, nor what would occur if they were.

Heads of liability

The patient sued Dr Falk for negligence and breach of contract, alleging, among other things, that he:

• failed to adequately warn of the risk of perforation;
• failed to reserve removal of the polyp for a later time; and
• failed to take reasonable care not to injure the patient in the course of the procedure.

The decision

The patient was unsuccessful on all fronts.

The relevant duty of care owed to the patient was formulated, in accordance with the established duty in Rogers v Whittaker⁸, as a duty to exercise reasonable care and skill in the provision of professional advice and medical treatment. The standard of reasonable care was that of the ordinary skilled surgeon 'specialising as an upper gastrointestinal surgeon endoscopist who practised at a tertiary referral centre'.⁹

Duty to warn

A doctor has a duty to warn a patient of a risk to which, if disclosed, the patient would attach significance.¹⁰ 

It was accepted by the court that finding a polyp during an upper endoscopy was rare, and while, if removed, there was a small risk of perforation, that risk was also minimal. Dr Falk's practice was not to discuss the possibility of such polyps with patients because of their rarity and it was accepted that 'a responsible body of medical opinion would not have warned the patient of the possibility of a polyp being found, much less the risk of perforation if the polyp was removed'.¹¹ Brochures provided to the patient following her consultation warned of the general risk of haemorrhage inherent in the procedure and referred expressly to the removal of polyps.

The court held that the general warning of the nature given to the patient was adequate, given the rarity of the events that occurred. No specific warning by Dr Falk of the risk of perforation from the removal of a polyp was required. Further, the court was firm in holding that, even if fully aware of the risk involved, the patient would not have changed her course of action.

Other claims of negligence

Despite the expert evidence given on behalf of the patient suggesting that Dr Falk should have deferred removal of the polyp to consult with the patient about the alternative procedures available, in light of the patient's fear of anaesthetics (which was known to Dr Falk) and the serious risk that the polyp was malignant, the court held that Dr Falk had not breached his duty of care in removing the polyp.

Further, even if Dr Falk had breached his duty to the patient, it was held that the breach was not causative of the injury to the patient because the court considered that, if she had been asked, the patient would have directed Dr Falk to carry out the same procedure, which would have exposed her to the same risks.

Finally, Dr Falk was not negligent in his removal of the polyp because it was accepted that perforation may occur in even small polyps, and there was no evidence that he did not carry out the procedure correctly or with requisite care and skill.

Conclusion

This decision confirms that a medical practitioner is not expected to warn a patient of each and every risk associated with a medical procedure. Medical procedures are inherently risky and, provided the patient has been advised of those risks to which the patient would attach significance, the medical practitioner will have complied with their duty to warn, notwithstanding that a rare complication might be encountered.

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When will a surgical procedure amount to battery?

In brief: The Queensland Supreme Court recently considered a case in which a gynaecologist performing a sterilisation also dissected an adhesion that he had detected during the procedure. A question arose as to whether dissecting the adhesion for a dual purpose, and beyond what was reasonably necessary to effect sterilisation, amounted to battery due to absence of consent by the patient to the adhesiolysis. Partner Jenny Thornton and Law Graduate Sarah Bungey review the decision in McDonald v Ludwig & Anor.¹²

Background

During a sterilisation, Dr Ludwig detected an adhesion between the small bowel and the interior abdominal wall, which he dissected. The patient subsequently suffered a perforation of the small bowel, causing pain, distress and inconvenience, and necessitating further operations. Dr Ludwig contended that the perforation of the bowel was a consequence of the patient suffering Crohn's disease. The patient contended that the perforation occurred either in the course, or as a result, of the sterilisation.

Dr Ludwig asserted that the adhesiolysis was a necessary surgical procedure performed so that he could identify the entire fallopian tube and confirm the accurate application of a Filshie Clip, and ensure that full sterilisation was achieved. He also considered that the adhesiolysis might obviate future bowel problems for the patient.

Dr Ludwig further asserted that the patient had consented to the adhesiolysis by her consent to the sterilisation. The patient argued that the adhesiolysis was not a necessary surgical procedure and not a procedure for which her informed consent had been obtained.

The patient brought actions in negligence and trespass to the person against Dr Ludwig and the State of Queensland. The court held that the plaintiff failed to prove negligence by Dr Ludwig, as adhesiolysis is a normal practice of gynaecologists performing sterilisations and Dr Ludwig had exercised due care and skill. This article will consider the action in trespass to the person.

The law of trespass to the person in general

'Battery' is defined as an act of the defendant that directly, and either intentionally or negligently, causes some physical contact with the person of the plaintiff without the plaintiff's consent.¹³ At common law, therefore, every surgical procedure is an assault unless it is authorised (by the patient's consent), justified or excused by law.¹⁴ Consent is not necessary for an emergency surgical procedure if the patient lacks the capacity to consent,¹⁵ but otherwise the consent must be real consent, where the patient is fully informed in broad terms of the nature of the intended procedure.¹⁶

The decision

In this case, both parties accepted that the patient had consented to the sterilisation procedure. The question that arose was whether the patient had consented to the adhesiolysis. Note that for the purpose of establishing whether the adhesiolysis constituted battery, the cause of the bowel perforation was irrelevant as there is no need to prove consequential injury or loss to establish battery.

The court decided that, although the patient may not have been expressly informed that adhesiolysis might be necessary, she was told of the possible presence of the adhesions and was made aware that they might cause future bowel problems. The court concluded that the patient implicitly consented to the adhesiolysis for the purposes of facilitating sterilisation and for any purpose incidental to sterilisation.

The court then turned to the question of whether that implied consent covered adhesiolysis for a dual purpose (sterilisation and to obviate future bowel problems) and to a degree greater than was necessary for the purposes of sterilisation. The court had to consider whether the adhesiolysis was merely part of the sterilisation procedure or whether it constituted something more.

Based on the evidence, the court decided that, although the adhesiolysis was performed primarily to further the sterilisation procedure, a subsidiary purpose existed. The judge found it probable that the adhesion was divided to a greater extent than was necessary to facilitate the sterilisation.

The court noted that where an alleged trespass to the person consists of conduct that is the continuation of a surgical procedure commenced with consent, absence of consent to the conduct may be difficult to establish. In this case, the point at which the adhesiolysis ceased to be within the scope of the consent was not ascertainable. The judge further held that, broadly viewed, the adhesiolysis could be regarded as within the scope of the intended procedure. The fact that the surgeon cut, excised or divided more than was consistent with sound surgical practice or reasonable for the purposes of the sterilisation, did not, without more, render his acts non-consensual.

Consequently, it was held that Dr Ludwig had not committed the tort of trespass to the person on the patient.

Conclusion

This case underlines the importance of considering the scope of a patient's consent to a surgical procedure. In order to avoid a claim for battery, doctors need to ensure they do not act outside the scope of the consent. However, it might be permissible in some circumstances to act outside the scope of consent if that further surgery is only a small or minor extension of the ambit of the consent given, and is consistent with sound surgical practice.

Note: It is apparent from the decisions in Marko v Falk and McDonald v Ludwig & Anor that unexpected occurrences during surgery resulting in additional or more complex procedures can potentially be attacked by an aggrieved patient as either a breach of the doctor's duty to warn or as battery for a procedure conducted without consent. These cases highlight the importance of a thorough pre-surgical consultation.

Footnotes

1. [2007] QSC 090.
2. [2006] VCAT 2292 (14 November 2006).
3. [2007] PrivCmrA2.
4. (1995) VAR 31 at 366.
5. Privacy Act 1988 (Cth), s6.2; Health Records Act 2001 (Vic), s6.2.
6. [2007] FCA 388.
7. [2007] NSWSC 14.
8. (1992) 175 CLR 479.
9. Marko v Falk [2007] NSWSC 14 at [28].
10. Rogers v Whittaker (1992) 175 CLR 479 at 490.
11. Marko v Falk [2007] NSWSC 14 at [42].
12. [2007] QSC 028.
13. 45 Halsbury's Laws of England, fourth edition, para 1311.
14. Secretary, Department of Health & Community Services v JWB & SMB (1992) 175 CLR 218 at 310.
15. Secretary, Department of Health & Community Services v JWB & SMB (supra) at 310.
16. Chatterton v Gerson [1981] QB 432.

For further information, please contact:

• Andrew WisemanPartner, Sydney
  Ph: +61 2 9230 4701
  Andrew.Wiseman@aar.com.au
• Adam ThatcherPartner, Brisbane
  Ph: +61 7 3334 3157
  Adam.Thatcher@aar.com.au
• Tony PymanPartner, Melbourne
  Ph: +61 3 9613 8891
  Tony.Pyman@aar.com.au
• Dr Trevor DaviesPartner, Allens Arthur Robinson Patent & Trade Marks Attorneys, Sydney
  Ph: +61 2 9230 4007
  Trevor.Davies@aar.com.au
• Niranjan ArasaratnamPartner, Melbourne
  Ph: +61 3 9613 8324
  Niranjan.Arasaratnam@aar.com.au

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