Torts: Cases and Commentary - LexisNexis

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consequences of his later knife killing of a drunken pedestrian. Illegality defence. Simon and Anor v Hunter and New England Area Health Service [2009] NSWSC 758 is an interlocutory decision only (regarding the availability of a jury trial) but arises from a claim in that a psychiatric patient was released from hospital into care of friend for road journey from Taree to Victoria and the patient killed the friend during the journey. The claim will be one by relatives of the deceased for damages against Area Health Service. The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173. A decision considering the duty of an institution to warn staff of the risk of injury from a patient with a history of violence. The claim failed on causation grounds. 4.20 Normative causation Adams by her next friend O'Grady v State of New South Wales [2008] NSWSC 1257. Alleged breach of duty by State in providing plaintiff with access to knife with which she stabbed and killed a teacher. As to causation see [113]ff. Return to table of contents 6
5.19 Ethical framework For an interesting discussion on the possible clinical benefit to the patient of an early disclosure of an adverse event, see A Allan & D McKillop, The health implications of apologizing after an adverse event, International Journal for Quality in Health Care 5 February 2010. Incidental to the discussion regarding duty to disclose error are recent moves towards a statutory framework for ‘mandatory reporting’. For example, Section 71A of the Medical Practice Act 1992 (NSW) introduced a concept of “reportable misconduct”, placing an obligation on doctors (after 1 October 2008) to report certain types of misconduct to the New South Wales Medical Board. o 71A Reportable misconduct: (1) A registered medical practitioner commits reportable misconduct in the following circumstances: (a) if he or she practises medicine while intoxicated by drugs (whether lawfully or unlawfully administered) or alcohol, (b) if he or she practises medicine in a manner that constitutes a flagrant departure from accepted standards of professional practice or competence and risks harm to some other person, (c) if he or she engages in sexual misconduct in connection with the practice of medicine. (2) A registered medical practitioner who believes, or ought reasonably to believe, that some other registered medical practitioner has committed reportable misconduct must, as soon as practicable, report the conduct to the Board. Guidelines issued in August 2008 by the New South Wales Medical Board provide some commentary on subsection (b), indicating that the Board considers a flagrant departure from accepted standards involves a very high degree of departure from such standards. Conduct which is merely careless or negligent (in the sense that it fails to meet the standards of care owed to patients) will generally not be flagrant. Whilst it is possible for reasonable practitioners to disagree about whether a particular practice is or is not negligent, a flagrant departure is likely to be one which is both serious and obvious to any reasonable practitioner. This is particularly likely to be the case where another practitioner engages in reckless, unethical, wilful or criminal behaviour. The reportable misconduct must pose a risk of harm to some other person as well as constituting a flagrant departure from accepted standards of professional practice or competence, before mandatory reporting is required. The Guideline can be found on the New South Wales Medical Board website http://www.nswmb.org.au under the menu item ‘news & updates’. Similar ethical obligations are reflected in 6.3.4 and 6.3.5 of Good Medical Practice: A Code of Conduct for Doctors in Australia which will be adopted by the new Medical Board of Australia http://goodmedicalpractice.org.au/code/ 7
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