HEALTH ALERT 11 February 2019 Judgments .................................................................................................................................... 2 Recent Decisions ....................................................................................................................... 2 New South Wales (NSW) ......................................................................................................... 2 Queensland ............................................................................................................................... 3 Victoria ...................................................................................................................................... 3 Western Australia .................................................................................................................... 3 Legislation .................................................................................................................................... 3 Victoria ...................................................................................................................................... 3 Reports ......................................................................................................................................... 3 Australia. Department of Health ............................................................................................. 3 Australia. Health Practitioner Regulation Agency (AHPRA) and the boards .................... 4 Australia. Pharmaceutical Benefits Schedule (PBS) ............................................................ 5 Australia. Therapeutic Goods Administration (TGA) ........................................................... 5 Australian Commission on Safety and Quality in Health Care ........................................... 6 Australian Capital Territory (ACT). Health Directorate ........................................................ 6 Northern Territory .................................................................................................................... 7 Queensland (QLD). Department of Health ............................................................................. 7 South Australia (SA). Department for Health and Wellbeing .............................................. 7 Tasmania. Department of Health & Human Services ........................................................... 8 Victoria. Department of Health ............................................................................................... 8 Western Australia. Department of Health .............................................................................. 8 Australian Medical Association (AuMA) ................................................................................ 8 About us ..................................................................................................................................... 10 More information ....................................................................................................................... 10 DLA Piper 1 JUDGMENTS Recent Decisions 8 February 2019 - RJB Wolfe Pty Ltd v Mornington Peninsula Eye Clinic Pty Ltd [2019] VSC 27 - TRADE PRACTICES – Misleading or deceptive conduct – Passing off – Use of name ‘Mornington Peninsula Eye Clinic’ – Established business called ‘Peninsula Eye Centre’ – Whether defendants made false representation as to existence of a connection or affiliation with the business of the plaintiff – Where business names use descriptive or functional terms – Plaintiff had not established and maintained distinctive reputation in its business name – Ophthalmologists, optometrists, general practitioners and patients are not likely to be misled into believing that practice of first defendant is associated with that of the plaintiff – Competition and Consumer Act 2010 (Cth) Sch 2 s 18. The plaintiff, a company associated with Dr Richard Wolfe, a leading ophthalmic surgeon, provides a comprehensive range of ophthalmic services under the business name Peninsula Eye Centre. Peninsula Eye Centre was established by Dr Wolfe over 30 years ago in the Mornington Shire. The first defendant, a company associated with Dr Edward Roufail and Dr Anton Van Heerden, both ophthalmologists and vitreo- retinal surgeons, and the second and third defendants respectively, has recently established a competing ophthalmology business known as Mornington Peninsula Eye Clinic. Both practices are located on the Nepean Highway, Mornington within a kilometre of each other. Dr Wolfe complains that the names are similar and apt to confuse. He wants Drs Roufail and Van Heerden, who both at times operated at his surgery, to cease using the word ‘Peninsula’ in their trading name. He is content for the phrase ‘Mornington Eye Clinic’ to be used and contends that the geographical or generic word ‘Peninsula’ after ‘Mornington’ is misleading and apt to confuse. The plaintiff claimed that the defendants engaged in misleading or deceptive conduct or conduct likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law, being Schedule 2 of the Competition and Consumer Act 2010 (Cth). A further claim for passing off was also made. It was found the plaintiff has not established that the use by the first defendant of its business name, Mornington Peninsula Eye Clinic is conduct that has, or is likely to, mislead or deceive the public. The claim of misleading or deceptive conduct failed. The claim of passing off also failed. 8 February 2019 - Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 - PROFESSIONS AND TRADES - Health care professionals – Nurses – Where nurse admitted to having been convicted of drug offences – Where nurse admitted to contravening the National Law by failing to notify the regulator of criminal charges and by failing to provide details of the change in her criminal history when applying for registration renewal – Whether the misleading statements on nurse’s renewal applications capable of constituting 'other improper or unethical conduct' within s 139B(1)(l) of the National Law – Whether admitted criminal conduct and contraventions of the National Law makes the nurse 'otherwise' not suitable to hold registration - Meaning of s 144(e) of the National Law – Whether supplying prohibited drugs makes nurse unsuitable to hold registration where she is remorseful for her conduct. Ms Achurch was found guilty of the offence of resisting a police officer in the exercise of duty in 2014 and convicted of two offences of drug supply in 2016, whilst registered as a nurse. She failed to disclose the charges against her and the criminal findings to the Australian Health Practitioner Regulation Agency and made false statements about her criminal history in her registration renewal applications. The Health Care Complaints Commission applied for disciplinary orders against Ms Achurch. The Tribunal found that the complaint that Ms Achurch has been convicted of offences in the State of New South Wales had been made out. The Tribunal were also satisfied that she is guilty of unsatisfactory professional conduct in that she contravened provisions of the Health Practitioner Regulation National Law (NSW) when she failed to disclose the charges and convictions and that she engaged in improper or unethical conduct when she made false statements on her renewal applications. The Tribunal were not satisfied that the Commission had established its fourth complaint, that she is otherwise not suitable to hold registration. New South Wales (NSW) 18 January 2019 - Fresh inquest into the death of Jarrod Wright - CORONIAL LAW – whether necessary or desirable for recommendation to be made regarding nursing/patient ratios. 4 February 2019 - Attorney General for NSW v Bar-Mordecai [2019] NSWSC 13 - PROCEDURE – Vexatious litigant – leave to appeal under Vexatious Proceedings Act 2008 – deregistration by Medical DLA Piper 2 Tribunal – NSW Civil and Administrative Tribunal – professional competence – professional misconduct – unfitness to practice – leave to commence proceedings in NCAT dismissed. 7 February 2019 - Sills v State of New South Wales [2019] NSWCA 4 - TORTS – action by a former police officer against the State pursuant to the Crime Proceedings Act 1988 (NSW) – alleged breach of non-delegable duty to take reasonable care to prevent psychological injury – satisfactory procedures in place to identify officers at risk of post-traumatic stress – whether the New South Wales Police breached its duty of care to the police officer by failing to implement the system for detecting and addressing psychological injury – whether failure to act on recommendations by a Police Medical Officer and Police Psychologist constituted a breach of duty – whether the New South Wales Police were entitled to assume that the appellant’s psychological problems had resolved on her return to work. CONTRIBUTORY NEGLIGENCE – whether appellant’s own conduct contributed to her psychological injury – whether her conduct was the product of the breach of duty. Queensland 4 February 2019 - Inquest into the death of Stella HAMILTON - Aged Care, palliative care, euthanasia, dementia, suffocation, CCTV, privacy, consent, public interest intervenor, cause of death undetermined. Victoria 24 January 2019 - Finding into death of Bryan Lindsay Cleeman without Inquest - COR 2015 5014. Policies and guidelines 6 February 2019 - Time critical defined transfer guidelines - Demand for critical care services is frequently high