AMA VICDOC Spring 2023 - Magazine - Page 32
PARTNER CONTENT
LEGAL REVIEW
OF RESPONSE
TO COVID-19
-
REPORT CINDY TUCKER ANJALI WOODFORD, PARTNERS AT KENNEDYS LAW
K
ennedys’ international health team are
undertaking a review of the operational and
digital response to COVID-19 across the
globe. In Australia, the onset of COVID-19 intensified
pressure on the healthcare system, and accordingly
the Federal and State Governments implemented
policies including:
–Lower priority services, such as elective surgery,
were put on hold whilst attention was provided to
the management and treatment of COVID-19.
–Increasing the supply of a suitably qualified
workforce was critical to being able to meet
healthcare demands. Practitioners and healthcare
staff were redeployed from private settings to the
public health system to support COVID-19 efforts.
The Australian Health Practitioner Regulation
Agency (AHPRA) established a pandemic response
sub-register to fast-track the return of retired
practitioners to the workforce.
–One of the most significant operational changes
to healthcare has been the significant update in
telehealth consultations. Telehealth services has
continued to grow and expand since its introduction
in March 2020, to include general practitioners,
specialists, nurse practitioners, midwives,
psychologists and other allied
health services.
It is premature to predict the impact of COVID-19
on the Australian medical malpractice claims
landscape, but we consider there is likely to be an
increase in claims regarding delays or misdiagnosis.
Historically our industry has seen an increase in claims
during periods of economic downturn and all medical
defence organisations have reported increased claims
numbers in the last 12 months.
With patients opting for telehealth consultations and
not presenting for face-to-face consultations, there has
been a reduction in routine health screens, including
breast cancer screening, pap smears, and cardiac
monitoring. As we have not previously faced the same
or similar circumstances presented by the pandemic,
the law in Australia will ultimately be evolving.
AREAS OF EMERGING RISK IN 2021
Our anecdotal experience of an increase in
regulatory complaints has been supported by
AHPRA which has reported that there was a
7.2 per cent increase in the number of
notifications made against medical practitioners
to AHPRA in the last year (5,745 versus 5,359).
The most common types of notifications were
complaints about clinical care which accounted for
54.2 per cent. Medication and communication were the
next most common types of complaints. Complaints in
relation to the provision of mental health consultations
by telehealth (including privacy breach claims) and
the lack of available resourcing during the pandemic
has featured in notifications. Complaints relating
to professional boundary transgressions/breaches by
medical practitioners are increasingly being tested in
AHPRA before progressing to civil proceedings
and are an area of growth in claims.
AHPRA has provided recent guidance on the
circumstances that enliven the obligation to notify
the Medical Board under s.130 of the National Law.
One of these obligations is entering a section 92
agreement (pursuant to the Health Insurance Act
1973 (Cth)) following a review by the Director of
Professional Services which includes a disqualification
from rendering or initiating specified services under
the Medicare Benefits Schedule or the Pharmaceutical
Benefit Scheme. It is important that practitioners who
are considering a s.92 agreement are reminded of this
obligation to avoid the risk of further disciplinary action
by breaching the notification deadline (seven days).
Level 9 360 Elizabeth Street Melbourne VIC 3000 Australia T (03) 9498 6699
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