Medico-legal update – Mandatory reporting

1. Medico-legal update –Mandatory reporting Presented by: John Van de PollPartner(02) 9390 8406 2558084

2. Mandatory Reporting The Requirements • HEALTH PRACTITIONER REGULATION NATIONAL LAW (NSW) - SECT 142 • Mandatory notifications by employers • 142 Mandatory notifications by employers • If an employer of a registered health practitioner reasonably believes the health practitioner has behaved in a way that constitutes notifiable conduct, the employer must notify the National Agency of the notifiable conduct.

3. Mandatory Reporting The Requirements • Health Practitioner Regulation National Law (NSW) - Sect 141 • This section applies to a registered health practitioner (the "first health practitioner") who, in the course of practicing the first health practitioner’s profession, forms a reasonable belief that- • another registered health practitioner (the "second health practitioner") has behaved in a way that constitutes notifiable conduct; or • a student has an impairment that, in the course of the student undertaking clinical training, may place the public at substantial risk of harm. • The first health practitioner must, as soon as practicable after forming the reasonable belief, notify the National Agency of the second health practitioner’s notifiable conduct or the student’s impairment.

4. Mandatory Reporting The Requirements • Health Services Act 1997 (NSW) • Applies to “public health organisations” • Duty of chief executive to report certain conduct of visiting practitioner – section 99A • The chief executive of a public health organisation is to report to the relevant professional council any conduct of a visiting practitioner that the chief executive suspects on reasonable grounds may constitute professional misconduct or unsatisfactory professional conduct under the Health Practitioner Regulation National Law (NSW) • Duty of chief executive to report certain conduct – staff of NSW Health Service – section 117A • The chief executive of a public health organisation is to report to the relevant professional council any conduct of a member of staff that the chief executive suspects on reasonable grounds may constitute professional misconduct or unsatisfactory professional conduct

5. The Protections • Health Practitioner Regulation National Law (NSW) • 237 Protection from liability for persons making notification or otherwise providing information • This section applies to a person who, in good faith- • makes a notification under this Law; or • gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law. • Provides information or is otherwise concerned in the making of a notification • The person is not liable, civilly, criminally or under an administrative process, or in defamation for giving the information. Not a breach of professional etiquette.

6. The Protections • Health Services Act 1997 – Sect 133B • 133B Personal liability of members of boards of “statutory health organisations” • “Statutory health organisation” meansa local health district or a statutory health corporation • A matter of thing done or omitted to be done by: • a statutory health organisation, or • the board of a statutory health organisation, or • a member of the board of a statutory health organisation, or • a person acting under the direction of such an organisation or board, does not, if the matter or thing was done or omitted to be done in good faith for the purposes of executing this or any other Act, subject such a member or person personally to any action, liability, claim or demand. • Similar provision for affiliated health organisations – section 67

7. The Protections • Defamation Act 2005 – Sect 27 • 27 Defence of absolute privilege • A matter of thing done or omitted to be done by: • It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege • I.e. the circumstances specified in Schedule 1. Schedule 1 6 Certain decisions of public health organisations … matter that is published under section 105 of the Health Services Act1997that relates to a decision, or the reasons for a decision, of a public health organisation referred to in that section.

8. The Protections • Defamation Act 2005 – Schedule 1 S.15 • Matters arising under Health Practitioner Regulation National Law in relation to medical practitioners • ….matter that is published: • to or by any of the following for the purpose of the assessment or referral of a complaint against a medical practitioner or other matter or the holding of any inquiry, performance review, investigation or appeal in respect of a medical practitioner under the Health Practitioner Regulation National Law:

9. The RealityDr Lucire v Dr Parmegiani • The Plaintiff commenced proceedings against Dr Parmegiani for damages • The matter complained of was a letter sent by Dr Parmegiani to the NSW Medical Board concerning the conduct of the Plaintiff in giving evidence in proceedings being heard before another Judge in the District Court, the concerns raised in the letter were not pursued further by the NSW Medical Board as it then was. • Three causes of action were pleaded • defamation, • injurious falsehood • misleading and deceptive conduct (s.42 of the Fair Trading Act 1987 (NSW)) • The matter came before Judge Gibson pursuant to an application by Dr Parmegiani for summary dismissal of the proceedings on the basis of the absolute privilege afforded by section 27 of the Defamation Act and an assertion that the injurious falsehood and section 42 claim were protected by an absolute privilege at common law. • An argument was pursued by the Plaintiff that it was necessary to examine the purpose of the complaint to the Medical Board although Her Honour was satisfied that the form and content of the letter could not be clearer, namely that it was for the purpose of a complaint. • In particular Her Honour commented that “if in every case a party was forced to give evidence of the “purpose of the document, the whole point of the privilege would be lost”.

10. The RealityDr Lucire v Dr Parmegiani • Her Honour was not however satisfied that a common law defence of absolute privilege existed in the circumstances of this case. • Her Honour relied upon the decision of the High Court of Australia in Mann v O’Neill [1997] CLR 204 in which the Court cited with approval the comments of Mr E E Williams in 1909, • “absolute immunity from the consequences of defamation is so serious a derogation from a citizens right to the State’s protection of his good name, that its existence at all can only be conceded in those few cases where overwhelmingly strong reasons of public policy of another kind cut across this elementary right of civic protection; and any extension of the area of immunity must be viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”. In Mann v O’Neill the Court held that the protection afforded by the common law, in the circumstances of that case, is one of qualified privilege only. • There being no common law absolute immunity from suit and as the Defamation Act only provided an absolute immunity for defamation, Her Honour declined to strike out the claims for injurious falsehood and misleading and deceptive conduct. Evidence of damage and evidence of good faith will still need to be heard. • The matter is currently part heard before the NSW Court of Appeal, however, if the decision stands, it is conceivable that more claims asserting injurious falsehood and misleading and deceptive conduct will be made, putting those who make mandatory complaints in the position of having to show good faith in the making of the complaint.