Hunter and New England Local Health District v McKenna & Simon [2014] HCA 44 Odisho v Bonazzi [2014] VSCA 11 Neville v Lam (No 3) [2014] NSWSC 607

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2 Contents Introduction 1 1. Hunter and New England Local Health District v McKenna & Simon [2014] HCA Odisho v Bonazzi [2014] VSCA Neville v Lam (No 3) [2014] NSWSC Robinson v Ng [2014] ACTSC Molloy v El Masri [2014] SADC Janet Harris v Sydney Local Health District [2014] NSWDC Mules v Ferguson & Anor [2014] QSC Dekker v Medical Board of Australia [2014] WASCA Re JS [2014] NSWSC Cairns and Hinterland Hospital and Health Service v JT s Guardian [2014] QSC Pound Road Medical Centre own motion investigation report July About Panetta McGrath 14 Our team 15

3 Introduction Welcome to Panetta McGrath s 2014 Health Law in Review The 2014 Health Law in Review recaps the key developments in health law and provides insights on the most important and interesting cases decided in A wide range of topics are covered from medical negligence, to vocational regulation, end- of- life care and privacy. Highlights include:! a decision of the High Court that considered whether health authorities owe a duty of care to third parties in exercise of statutory powers to detain and discharge mentally ill patients;! two Court decisions dealing with the duty of a health professional to follow up;! a decision of the Court of Appeal of Western Australia concerning an appeal by a doctor against a Tribunal finding of infamous or improper conduct for failing to stop and render assistance following a near miss motor vehicle accident; and! two Court decisions that looked at the lawfulness of cessation or withdrawal of life- sustaining medical treatment. On the claims front, in July 2014 the Australian Institute of Health and Welfare released its review of medical indemnity claims data for the period. The report provides valuable information about the current profile and trends of medical indemnity claims in Australia. Significantly, the report revealed:! The number of new public sector claims was less in (about 950) than any of the previous four years (1,200-1,400), while the number of closed public sector claims was higher (about 1,500) compared with the previous four years (1,100-1,400).! The number of new private sector claims remained steady at 3,200 to 3,300 per year from to This was higher than the 2,300-2,500 new private sector claims in and Yet the number of closed private sector claims also increased each year, from 2,400 to 3,800.! The proportion of new public and private sector claims combined against general practitioners was less in (23%) than any of the previous four years (28-32%). The proportion of new claims against obstetrics and gynaecology specialists decreased from 12% in to 8% in ! Between and , there was a decrease in the proportion of public sector claims closed for less than $10,000 and a corresponding increase in the proportion closed for $100,000 to less than $500,000. Yet for public and private sector claims combined, there was little change over the years in the claim size category proportions, including the 63-65% closed for less than $10,000.! Between and , there was a trend towards two features associated with less costly claims: a higher proportion of claims associated with a mild rather than a severe extent of harm to the patient, and a shift towards more claims connected with private medical clinics rather than a public hospital/day surgery. 1

4 Whilst the number of medical indemnity claims in Australia appears to have stabilised, there was a 16% increase in notifications (complaints) made about health practitioners to disciplinary boards in 2014 with more than 10,000 notifications received according to the 2013/14 Annual Report of the Australian Health Practitioner Regulation Agency (AHPRA) and the National Boards reporting on the National Registration and Accreditation Scheme (the National Scheme). Mandatory reporting rates have also increased by 9% nationally over the year, varied across states and territories and professions. Other highlights from AHPRA s 2013/14 Annual Report included:! 18.6% increase in notifications about medical practitioners;! 26% increase in nursing and midwifery notifications;! 56% of notifications were regarding medical practitioners, who make up 16% of total practitioners;! 75% of immediate actions for the most serious risks led to restrictions on registration; and! Of the matters decided by Tribunals, 88% resulted in disciplinary action. We hope that you find this publication is a useful way of reviewing 2014 and the key cases and developments in health law during that period. Panetta McGrath remains committed to providing the highest quality of legal services to the health industry. We encourage you to contact any of our team directly if you have any queries arising from any of the articles in this publication. 2

5 1. Hunter and New England Local Health District v McKenna & Simon [2014] HCA 44 No duty of care owed by hospital in discharging mentally ill patient The High Court of Australia unanimously held that a hospital did not owe a duty of care to the relatives of a man killed by a mentally ill patient who had been discharged into the man s care. In 2004, the patient, who suffered from chronic paranoid schizophrenia, was involuntarily admitted to, and detained in, hospital under the Mental Health Act 1990 (NSW). After a doctor at the hospital reviewed the patient s medical history, and spoke to the patient, his friend (Mr Rose) and the patient s mother in Victoria, it was agreed that the patient would be kept in the hospital overnight and that, the following day, Mr Rose would drive the patient back to his mother's home in Victoria where he would receive continuing medical treatment. In the course of the journey, the patient killed Mr Rose. Mr Rose s relatives claimed damages for psychiatric injury allegedly suffered by them as a result of Mr Rose s death. The relatives alleged that the hospital and the doctor did not exercise reasonable professional care and skill in deciding to discharge the patient into the care of Mr Rose for the journey to Victoria, and that the hospital was therefore liable. The High Court held that the hospital and doctor did not owe Mr Rose s relatives a relevant duty of care. Section 20 of the Mental Health Act prohibits the detention, or the continuation of detention, of a mentally ill person unless the medical superintendent of the hospital forms the opinion that no other less restrictive care is appropriate and reasonably available. The High Court found that performance of this statutory duty would not be consistent with a common law duty of care requiring regard to be had to the interests of those with whom the mentally ill person may come in contact when not detained. Because the High Court found there was no common law duty, it did not consider the extent and scope of the liability that imposing such a duty would entail. This is an important decision for hospitals and doctors exercising statutory duties or obligations, such as under the Mental Health Act. If the obligations under statute are inconsistent with a suggested common law duty of care owed to a person or third party, the statutory duty will prevail and the common law duty of care will not exist. 3

6 2. Odisho v Bonazzi [2014] VSCA 11 Duty to warn of rare risks and causation The Victorian Court of Appeal dismissed a patient s appeal alleging a duty to warn of rare risks and causation of her pulmonary emboli. On 17 April 2006, the patient was admitted to Royal Melbourne Hospital and diagnosed with multiple pulmonary emboli. The patient alleged that the pulmonary emboli were caused by her use of tranexamic acid (the drug) prescribed by her specialist gynaecologist to treat her abnormally heavy bleeding. The patient alleged that her gynaecologist had negligently failed to warn her of the risk that consumption of the drug may cause her to suffer a thromboembolic event. She claimed that had she been warned of this risk, she would not have taken the drug and developed pulmonary emboli. Evidence at the trial included that the drug was very commonly prescribed for the control of heavy menstrual bleeding; it was not the practice within the gynaecological profession to warn a patient to whom the drug was being prescribed of the risk of a thrombus or embolism developing with use of the drug; and the risk of occurrence of the side effect was rare (<1/1000). On appeal, the Court of Appeal stated that there seemed to be reasonable grounds for contending that reasonable care required a warning of the risk of a thromboembolic event as a result of taking the drug. However, the Court of Appeal did not make a concluded finding about this issue because it agreed with the trial judge s conclusions on causation. The appeal was accordingly dismissed. This decision highlights the difficulties for a plaintiff in proving causation in failure to warn cases. It was also significant that, despite the uncontested expert evidence at the trial that it was not normal practice to warn a patient of the rare risk, the Court of Appeal felt that arguably the gynaecologist was under a duty to warn the patient of the risk. The trial judge was not satisfied that the gynaecologist owed a duty of care to the patient to warn her of the risk of thromboembolic events. Further, on the issue of causation, the trial judge was neither persuaded that the drug was a physical cause of her pulmonary emboli, nor that had she been given a warning of the rare risk of thromboembolism, she would have declined the drug. 4

7 3. Neville v Lam (No 3) [2014] NSWSC 607 Doctor not negligent for unplanned pregnancy The Supreme Court of NSW dismissed a claim for damages against an obstetrician and gynaecologist for allegedly failing to warn the patient of the risk of pregnancy and the need to use contraception after undergoing an endometrial ablation. In 2004, the defendant, an obstetrician and gynaecologist, performed an endometrial ablation on the patient. This procedure was undertaken to treat her severe menorrhagia. In August 2006, the patient gave birth to a boy suffering multiple, significant disabilities. She brought a claim for damages associated with her pregnancy and the birth, including the costs of rearing and maintaining her son. The patient stated that, after she underwent the endometrial ablation and before she conceived, she believed it was not possible for her to become pregnant. She contended that, acting under that misapprehension, she did not use a contraceptive or undergo a tubal ligation before she fell pregnant. She claimed that the doctor was under an obligation to advise her of the risk that she could still conceive after she underwent the endometrial ablation, but he failed to do so and this failure constituted negligence. Significantly, the doctor had written journal articles in 1992 that discussed endometrial ablation, including the fact that while pregnancy is unlikely, a safe method of contraception is advised. The Court found the patient to be an honest witness. Nevertheless, she failed to discharge the onus of proving that the doctor did not provide the advice she alleged he was obliged to. Consideration of the contemporary materials (including the articles authored by the doctor in 1992) and the apparent logic of events satisfied the Court that the doctor gave her the advice in question in at least one of her consultations prior to the procedure. The plaintiff s claim therefore failed. The case serves as another reminder to doctors of the importance of making comprehensive clinical notes. The doctor s notes provided weight and support for a finding that the doctor had acted in accordance with his usual practice and had given the appropriate warnings to the patient. The doctor was unable to recall the advice he provided in his consultations with the patient. Nevertheless, having regard to what he stated was his usual practice in dealing with patients and the contents of his medical notes (which included a reference to endometrial ablation discussed and endometrial ablation, vs marina IUCD [sic] ), he denied that he failed to warn the patient that there remained a risk of her falling pregnant after undergoing the endometrial ablation, or of the ongoing need for her to use a safe and effective means of contraception. 5

8 4. Robinson v Ng [2014] ACTSC 227 Dentist negligent in not ceasing tooth extraction The ACT Supreme Court held that a dentist had breached his duty of care to a patient by failing to cease an attempted tooth extraction and inadvertently pushing the root of the tooth through the wall of her maxillary sinus. In December 2009, the patient presented to the dental practice with a painful upper right molar (tooth 17). An x- ray showed extensive decay under the existing filling. The patient opted for tooth extraction but the attempted extraction was prolonged. During the course of the extraction, the crown of the tooth was broken. The dentist subsequently took a second x- ray and continued the extraction. At that point, a remaining portion of the tooth being extracted was pushed through the wall of the plaintiff s maxillary sinus. A third x- ray was then taken. The dentist sutured the tooth socket and sent the patient away in anticipation of being able to make arrangements for her to see a maxillofacial surgeon in the following days. The patient subsequently developed a severe infection and was later diagnosed with Bell s Palsy and required surgery to remove a tooth fragment in her maxillary sinus. The principal allegation of negligence was that the dentist continued attempting to remove the tooth after the second x- ray in circumstances when he should have stopped and referred the patient to an oral surgeon or general dentist with significant oral surgery experience. The Court accepted the independent expert s evidence that the dentist should have ceased his attempted extraction no later than at the point when he examined the second x- ray. The risks of continuing with the extraction outweighed the benefits and were also significantly greater than if the patient was referred to an oral surgeon. Accordingly, the Court found that the dentist had breached his duty of care by not ceasing to treat the patient and referring her on. Damages were assessed at over $800,000. It is important that health professionals recognise and work within the limits of their own competence. In light of the high risk of an adverse outcome, the dentist should have stopped the procedure, clearly explained to the patient the risks of continuing further with the extraction and given her the opportunity for referral. 6

9 5. Molloy v El Masri [2014] SADC 53 Negligent failure to diagnose pregnancy and the duty to follow up The District Court of South Australia found that a general practitioner who failed to diagnose a patient s pregnancy until 33 weeks had breached her duty of care to the patient. In December 2005, when she was 48 years old, the patient consulted her general practitioner (GP) complaining of asthma, tiredness, and of having emotional outbursts. She also reported vaginal bleeding, which had been going on for some months. The GP made a diagnosis of asthma and prescribed medication. She also provided the patient with information about menopause and suggested she return for a further appointment if the gynaecological symptoms persisted. In April 2006, the patient undertook a home pregnancy test, which was positive. She subsequently consulted the GP who confirmed the pregnancy and referred her to a gynaecologist and for counselling, as the patient said she did not want to have a child. She was advised by her gynaecologist that she was 33 weeks pregnant and had no option but to continue the pregnancy to term. Her child was subsequently born with Down syndrome. The patient brought a claim against the GP for damages in respect of the consequences of undergoing childbirth, and the increased costs of raising a child with Down syndrome. The patient alleged that had she known she was pregnant when she consulted the GP in December 2005, she would have been able to undertake trisomy 21 testing and would have terminated the pregnancy. The question for the Court was the steps that should have been taken, given the symptoms described by the patient at the consultation in December On the basis of the expert evidence, the Court found that upon being told of the symptoms of irregular bleeding, it was incumbent for the GP to obtain a full history, conduct a thorough examination, and perform necessary tests. Further, having regard to the nature of the potential conditions that were possible causes for the plaintiff s presentation, including a condition of pregnancy, a follow- up appointment within a short timeframe was necessary. The GP gave evidence that she told the patient to come back within one month if the bleeding continued. However, her evidence was rejected. The GP s notes did not state that and the Court preferred the patient s evidence that the GP had told her to return in six months, if the symptoms persisted. The Court found the GP negligent and that the patient was entitled to damages for losses sustained. Health professionals must obtain a detailed history from a patient, consider the possible explanations or causes of a patient s symptoms and arrange any necessary investigations and examinations in order to properly discharge their duty of care. The case also reinforces (and arguably extends) the positive obligation on a health professional to follow up a patient. 7

10 6. Janet Harris v Sydney Local Health District [2014] NSWDC 21 Hospital negligent for failing to follow up treatment regime The NSW District Court held that a hospital s failure to follow up a vulnerable patient following non- attendance for medical treatment at an outpatient clinic was a breach of duty of care. On 18 February 2011, the patient presented to hospital with throbbing pain and swelling in her right ear. After initial treatment with intravenous antibiotics and other medications, on 19 February 2011 the patient had an ear wick inserted (used to allow for delivery of medication if the ear canal is too narrow). She was discharged from hospital on 23 February 2011 with the plan for a follow- up appointment at an Ear, Nose and Throat (ENT) outpatient clinic the following day. During this consultation, the tympanic membrane was visible indicating that the ear wick from the previous day had been removed. In July 2011, the patient re- presented to hospital with persisting ear pain and another ear wick was inserted. A plan was made for the patient to attend the outpatient clinic to have the ear wick removed. However, the patient failed to attend the appointment. During September 2011, the patient presented to numerous medical practices in relation to complaints of ear pain. Ultimately, in late September 2011, the patient presented to the Emergency Department of the hospital complaining of her ear pain. Subsequently, a foreign body (an ear wick) was found and removed from the patient s right ear. The patient claimed the hospital was negligent for failing to ensure that she was treated with due care and skill. She alleged that the hospital failed to remove the ear wick until late September 2011, and that it had failed to ensure that she attended hospital for follow up, management and treatment. The Court found that, on the balance of probabilities, the item removed from the patient s right ear in late September 2011 was the ear wick inserted by the hospital in July On the question of whether the hospital s failure to ensure the patient attended the hospital for removal of the ear wick inserted in July 2011 constituted a breach of duty, the Court recognised that the duty of care for a large hospital would not extend to ensuring the attendance of one patient at an outpatient clinic for ongoing treatment. The Court also recognised that there is a responsibility on the part of the individual to care for their own safety. However, the Court qualified this by stating that the law recognises that in certain circumstances the content of the duty of care can extend to requiring the taking of positive steps to avoid physical damage being sustained by a person to whom the duty is owed. Given the hospital s knowledge of the patient s recent history of hospitalisation for ear infections and of her drug dependency, the hospital was required to take positive steps to advise the patient of the need to return to the ENT clinic for removal of the wick and to follow up with the patient when she failed to attend in July This case highlights the need to consider an individual patient s vulnerability, such as drug and alcohol dependency. In the circumstances of a vulnerable patient, health professionals need to very clearly communicate advice in relation to the need for compliance with treatment and may be under a positive duty to follow up if the patient does not attend for treatment. 8

11 7. Mules v Ferguson & Anor [2014] QSC 51 Delay in meningitis diagnosis and failure to refer for specialist assessment The Queensland Supreme Court dismissed a patient s action against her general practitioner alleging a breach of duty for failing to refer her to a specialist. The plaintiff consulted her general practitioner (GP) on 12 September 2008 with complaints of headaches and neck pain. She was advised to take analgesia, but her headaches and neck pain persisted. She consulted the GP again on 18 September 2008 and a CT was ordered. The next day, the GP treated the plaintiff with additional medication for pain relief, believing that her problem was musculo- skeletal. By 24 September 2008, the plaintiff s condition had dramatically declined and she was conveyed by ambulance to Cairns Base Hospital. After some testing, she was discharged. The GP next saw the plaintiff on 25 September The GP immediately arranged for the plaintiff s admission to Cairns Private Hospital. She was subsequently diagnosed with cryptococcal meningitis. However, the diagnosis and treatment came too late to prevent irreversible neurological damage. She was rendered blind and deaf. The plaintiff brought proceedings against her GP, alleging that at the consultations on 18 and 19 September the GP should have perceived a more sinister condition and urgently referred her for specialist assessment. She alleged that had that occurred, her illness would have been diagnosed and treated earlier and she would not have suffered her permanent disabilities. At trial, there was a contest of fact as to what the plaintiff s presenting symptoms were at her consultations with the GP on 18 and 19 September. After a detailed consideration of the chronological history, the Court found that the plaintiff did not as at 18 and 19 September have a discernible collection of symptoms that would have caused the GP, acting with reasonable care and skill, to conclude she should refer the plaintiff for specialist assessment. The Court did identify a shortcoming in the GP s failure to physically examine the plaintiff s neck and to make some other inquiries. However, the Court found that these omissions would not have detected anything that would have prompted a different course. The Court noted that even if the GP had conducted a professionally incompetent consultation, the point was that a competently conducted consultation would not have identified symptoms suggesting the plaintiff needed referral to a specialist. Even if the [GP] conducted professionally incompetent consultation that would not be to the point if competently conducted consultation would not have identified symptoms suggesting a need to refer the plaintiff. The plaintiff failed to prove any causative breach of duty and so her claim failed. Had she been successful, the Court would have awarded $6,727, In this case, the Court emphasised the need to avoid hindsight bias, which is often a problem for defendants in claims of medical negligence. The fact that the plaintiff was the subject of a much more catastrophic condition than suspected, had to be put aside. The case also highlights the importance of making good contemporaneous clinical records, as the records of the GP (and other medical professionals) were critical to the Court s findings in relation to the factual contest. 9

12 8. Dekker v Medical Board of Australia [2014] WASCA 216 Doctor s failure to render assistance not improper The Western Australian Court of Appeal decided there was no specific professional duty for a doctor to attend and provide medical assistance to a person who is not a patient. The conduct occurred one evening in 2002 when the doctor was returning home from taking rubbish to a tip. The doctor was in a stationary position on a dirt road waiting to turn right at a T intersection. Another vehicle, which was travelling along the road into which the doctor was preparing to turn, suddenly veered towards her. The doctor took evasive action by moving her car across the road. The other vehicle passed behind her, crossed an embankment and ended up in a ditch. The doctor did not see the other vehicle crash, but did hear the noise of impact. Immediately following the incident, the doctor drove to a nearby police station to report the incident. She was said to be in a state of shock, petrified and freaked out by the near miss. In 2013, the State Administrative Tribunal (Tribunal) found that the doctor had been guilty of improper conduct in a professional respect as there was a specific professional duty on a doctor to attend and provide medical assistance to a person who was not a patient in particular circumstances. Those particular circumstances were that the doctor was: The Court of Appeal set aside the Tribunal s improper conduct finding. It found that there was no evidence of a specific professional duty as found by the Tribunal. For there to be any relevant professional duty to that effect where improper conduct was alleged, it would need to be an ethical obligation generally accepted within the medical profession in There was no such evidence. It was not open to the Tribunal to find a specific professional duty based on its own knowledge and experience. The Court of Appeal allowed the doctor s appeal and dismissed the Medical Board s application for want of evidence. This decision should provide reassurance to doctors that their professional duty to render assistance in an emergency situation will depend on consideration of a range of issues and the particular facts and circumstances existing at the time.! aware that a motor vehicle accident had occurred in the vicinity, or may have occurred in the vicinity;! aware that anyone involved in the accident had suffered, or may have suffered, any injury; and/or! physically able to render assistance. 10

13 9. Re JS [2014] NSWSC 302 Request to cease life- sustaining treatment A patient who had been a ventilator dependant quadriplegic since the age of seven requested that his life- sustaining mechanical ventilation be ceased on his 28th birthday. The patient, JS, was 27 years of age. Since the age of seven, he had been a quadriplegic. For a considerable period of time, the patient had been receiving a variety of medical services from John Hunter Hospital, including life- sustaining artificial ventilation. The patient decided that he no longer wanted to receive that life- sustaining treatment and expressed a wish that it cease on his 28th birthday. Consequently, the hospital approached the Supreme Court of NSW for a declaration to the effect that responsible medical practitioners could lawfully discontinue all life- sustaining treatment and medical support measures for the patient, including withdrawal of ventilation. The Court concluded that the patient had the capacity to make a decision to refuse the continuation of the mechanical ventilation, and that his decision in that regard was freely given and based on adequate information. The Court made a declaration to the effect that provided the patient s request was not revoked or modified by him, the medical practitioners and staff at the hospital with responsibility for his care would be acting lawfully if they acted in accordance with the patient s request that he be disconnected from the mechanical ventilation. This case highlights the issues that will be considered by a Court when patients wish to refuse medical treatment. If the Court determines that the patient has the requisite capacity and understands the nature and effect of the treatment (or withdrawal of treatment), then the principle of autonomy will prevail. The evidence indicated that the patient had been kept in hospital since May 2013 because there had been increasing episodes of autonomic dysreflexia that could not be controlled. These episodes were associated with extreme respiratory distress. Despite comprehensive ongoing inpatient care, his health was slowly deteriorating. The patient, via a letter to the hospital, described that since March 2013 he openly discussed with family members and medical staff the possibility of withdrawing the life- sustaining treatment that had kept him alive for the last 19 years. The evidence also indicated there was no doubt as to the capacity of the patient to make the decision for the mechanical ventilation to be disconnected and the consequences of his request being respected. 11

14 10. Cairns and Hinterland Hospital and Health Service v JT s Guardian [2014] QSC 251 Withdrawal of treatment in patient s best interests The Queensland Supreme Court exercised its parens patriae jurisdiction to declare that withdrawal of critical medical treatment was in the best interests of the patient. The patient, a 37 year old married father of two, suffered a severe hypoxic injury secondary to diabetic ketoacidosis and cardiac arrest in November Since the emergency medical intervention that prevented his death, he had been lying in a hospital bed in an apparently unconscious state, surviving only as a result of tube feeding and other treatments. His wife had been a regular visitor and perceived his condition had gravely deteriorated. Prior to this catastrophe, the patient had enjoyed a normal life and expressed comments about what he would want to occur were he ever to end up as a vegetable. He made it plain that in such a situation he would want his loved ones to turn the bloody machine off. An application was made by the Health Service that it be declared in the patient s best interests that treatment be withdrawn and that its cessation would be lawful. The patient s wife supported the application. There was some digression in the medical evidence as to whether the patient was in a persistent vegetative state or a minimally conscious state. However, the reality for the patient was that there was no difference. All medical practitioners were of the universal opinion that there was no prospect of improvement. Taking into account the uncontested evidence of the patient s commonly- expressed attitude in relation to ongoing care in the event that he was lying unconscious, unaware and without hope of recovery, the Court concluded that it was no longer in the patient s best interests for that care to continue. The Court declared that withdrawal of those critical means of care would be lawful and, indeed, that its continuation would be unlawful and inconsistent with good medical practice. Decisions to withdraw life- sustaining medical treatment are complex where the patient involved lacks capacity. This case highlights the Court s power pursuant to its parens patriae jurisdiction to authorise the withdrawal of life- sustaining treatment in a patient s best interests. 12

15 11. Pound Road Medical Centre own motion investigation report July 2014 Failure to take reasonable steps to secure sensitive medical records The Australian Privacy Commissioner found a medical practice had breached the Privacy Act by failing to take reasonable steps to secure personal information it held. In December 2013, the Australian Privacy Commissioner (the Commissioner) opened an own motion investigation into Pound Road Medical Centre (PRMC). This was in response to media reports that there were boxes of unsecured medical records at an address in Narre Warren South (the site). PRMC owned and controlled the site, and previously operated a medical centre there. PRMC had stored paper- based medical records of approximately 960 patients in a locked shed at the back of the site. Most of these records did not relate to current patients. The shed door was locked with three padlocks. Since November 2004, PRMC had changed to computerised health records. In April 2011, PRMC had moved to new premises. In November 2013, the shed was broken into and the medical records were compromised. The Commissioner held that PRMC failed to take reasonable steps in relation to the compromised personal information. The Commissioner did not consider there to be any circumstances in which it would be reasonable to store health records, or any sensitive information, in a shed. PRMC had also failed to take reasonable steps to destroy or de- identify records that were no longer in use or needed, as required under the Privacy Act. The Commissioner recommended that PRMC undertake a risk assessment with respect to its privacy practices, organise privacy training for all staff, and develop a data breach response plan. This case illustrates how privacy breaches can occur through errors or inadvertence. It highlights the importance of organisations handling sensitive information (such as health information) to take reasonable steps to keep the information it holds secure, and the need to destroy or de- identify any personal information that is no longer required. 13

16 About Panetta McGrath Panetta McGrath is a leading Western Australian health law firm. Our team comprises senior lawyers with extensive experience and deep knowledge of health law and the health sector. We are dedicated to providing expert legal advice and representation for medical, dental and allied healthcare professionals, public and private hospitals, insurers and regulators, on medical and clinical negligence, disciplinary and health law issues. As a specialty boutique law firm, we deliver efficient, highly personalised service at very competitive rates. Specialties include: Health law Medical and clinical negligence Litigation and dispute resolution Risk management Professional regulation Coronial inquiries Privacy Commercial and business Aged care 14

17 Our team DIRECTORS Enore Panetta Phone: (08) Gemma McGrath Phone: (08) LAWYERS Julia Wilcock Phone: (08) Danielle Webb Phone: (08) Wendy Meggison Phone: (08) Daniel Brand Phone: (08) Catherine Carroll Phone: (08) Dorothy Collins Phone: (08)

18 To learn more about how we can help you, please contact: This publication is intended to provide a general outline and is not intended to be and is not a complete or definitive statement of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in this publication. 16

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