Download - DLA Piper

HEALTH ALERT
22 August 2016
Judgments.................................................................................................................................... 2
Commonwealth, Federal Court............................................................................................... 2
Australian Capital Territory (ACT).......................................................................................... 2
New South Wales ..................................................................................................................... 2
Legislation.................................................................................................................................... 3
Commonwealth ........................................................................................................................ 3
Reports ......................................................................................................................................... 3
Australia. Department of Health ............................................................................................. 3
Australia. Health Practitioner Regulation Agency and the boards..................................... 3
Australia. National Health & Medical Research Council (NHMRC) ..................................... 4
Australia. Pharmaceuticals Benefits Scheme (PBS) ............................................................ 4
Australia. Therapeutic Goods Administration (TGA) ........................................................... 4
Australian Institute of Health & Welfare (AIHW) ................................................................... 4
Australian Commission on Safety and Quality in Health Care ........................................... 4
Australian Prudential Regulation Authority (APRA) ............................................................ 4
New South Wales (NSW). Ministry of Health......................................................................... 5
Queensland. Department of Health ........................................................................................ 5
South Australia. Department for Health & Ageing................................................................ 5
Tasmania. Department of Health & Human Services ........................................................... 5
Victoria. Department of Health ............................................................................................... 6
Western Australia (WA). Department of Health .................................................................... 6
New Zealand (NZ). Ministry of Health .................................................................................... 6
United Kingdom. Department of Health................................................................................. 7
United States of America (U.S.). Department of Health & Human Services (HHS) ........... 7
Australian Medical Association (AuMA) ................................................................................ 7
British Medical Association .................................................................................................... 8
About us ....................................................................................................................................... 8
More information ......................................................................................................................... 8
DLA Piper
1
JUDGMENTS
Commonwealth, Federal Court
16 August 2016 Verrocchi v Direct Chemist Outlet Pty Ltd [2016] FCAFC 104 - The appellants, trading
as Chemist Warehouse, and the respondents, trading as Direct Chemist Outlet, each own or operate
discount retail pharmacy chains throughout Australia. They are direct competitors. At first instance, the
appellants sought orders restraining the respondents from using a get-up and colour scheme on their
pharmacy storefronts that was alleged to be substantially identical or deceptively similar to the appellants’
storefront get-up. The primary judge dismissed the proceeding. His Honour found, among other things, that
the respondents had sufficiently distinguished their trade indicia so that the logo, colours and appearance
of their stores, catalogues and website would not have been likely to mislead or deceive consumers. This
is an appeal of that decision.
The notice of appeal contained 19 grounds of appeal, many of which overlapped and were repetitive of
what were essentially the central complaints. The appellants principal assertion was that the primary judge
had 'over-intellectualised the likely analysis and comparisons of the ordinary consumer'. The appellants did
not assert that his Honour had misstated any relevant legal proposition or failed to consider any relevant
legal proposition. Rather, the appellant's challenge was to his Honour's factual conclusions. The Full Court
found there to be no error in respect of his Honour's findings and determination. The appeal was
dismissed.
Australian Capital Territory (ACT)
15 August 2016 Calvary Hospital Auxiliary Inc v D'Amico [2016] ACTCA 39 - The appellant, Calvary
Hospital Auxiliary Inc ('the Auxiliary'), is a voluntary association linked to Calvary Hospital in ACT. It
conducted a kiosk and café at the Hospital until 30 June 2007. The respondent, Christine D'Amico was
employed in the café the Auxiliary from February 2004 until 30 June 2007. Her main duty was to make
coffee. In April 2006, Ms D'Amico consulted her general practitioner about pain in her elbow and down to
the wrist of her right arm. She continued to have problems which ultimately led to surgery. In 2008, she
commenced proceedings in the Supreme Court claiming damages for the injuries she claims to have
suffered as a result of the work she carried out for the auxiliary. In 2013, the Court entered judgment for Ms
D'Amico and ordered that the Auxiliary pay her $593,700 in damages and costs. This is an appeal of that
decision.
The Court of Appeal agreed that the Auxiliary had failed to provide Ms D'Amico with a safe system and
place of work. It found that this failure was a breach of the Auxiliary's duty of care to Ms D'Amico and a
major cause of her injury and disabilities. This was despite the earlier finding that Ms D'Amico had 'an
anatomical vulnerability' to the injury she suffered. The court's reasoning on this point was that the
employer must take each employee as it finds them.
On appeal, the verdict and judgment was varied by substituting $590,050 for $593,700. It was otherwise
dismissed.
16 August 2016 Medical Board of Australia v Melhuish [2016]
ACAT
29
OCCUPATIONAL
DISCIPLINE – MEDICAL PRACTITIONER – professional misconduct – medical research – information
and health privacy principles – health records – personal health information.
New South Wales
15 August 2016 Hanna v Medical Council of NSW [2016] NSWCATOD 108 - Health practitioner
suspended from practice - stay application pending appeal - relevant principles - appeal unlikely to
succeed - on balance of convenience application refused.
18 August 2016 Health Care Complaints Commission v McLean [2016] NSWCATOD 111 - NURSE –
inappropriately administered of medication prescribed for one patient to a patient for whom the medication
was not prescribed – inappropriate administration of medication prescribed for one patient to two other
patients where medication prescribed as needed but no medical consent obtained – failed to discuss
concerns about the medication regime of patients with a medical officer – failure to obtain a written order
prior to administering medications - unsatisfactory professional conduct - professional misconduct.
DLA Piper
2
LEGISLATION
As a general rule, this bulletin tracks subsidiary legislation at Commonwealth, but not at state level
Commonwealth
18 August 2016 National Health (Price and Special Patient Contribution) Amendment Determination
2016 (No. 6) (PB 73 of 2016) F2016L01305 PB 73 of 2016 as made.
18 August 2016 Health Insurance (Pathology Services Table) Regulation 2016 F2016L01304 as made.
18 August 2016 Health Insurance (Diagnostic Imaging Services Table) Regulation 2016 F2016L01303
as made.
18 August 2016 National Health Determination under paragraph 98C(1)(b) Amendment 2016 (No. 7)
(PB 74 of 2016) F2016L01298 PB 74 of 2016 as made.
18 August 2016 National Health (Pharmaceutical benefits - early supply) Amendment Instrument
2016 (No. 7) (PB 75 of 2016) F2016L01297 PB 75 of 2016 as made.
18 August 2016 National Health (Listing of Pharmaceutical Benefits) Amendment Instrument 2016
(No. 8) (PB 72 of 2016) F2016L01296 PB 72 of 2016 as made.
16 August 2016 Therapeutic Goods Order No. 92 - Standard for labels of non-prescription medicines
F2016L01287 as made.
16 August 2016 Therapeutic Goods Order No. 91 - Standard for labels of prescription and related
medicines F2016L01285 as made.
REPORTS
Australia. Department of Health
Media releases
14 August 2016 Diabetes breakthrough part of $70m PBS medicines listings As many as 20,000
Australians living with Type 2 diabetes will find it easier and cheaper to manage their condition every day
thanks to the Turnbull Government subsidising another $70 million round of new revolutionary medicines
that will also help save the lives of women with advanced cervical cancer.
13 August 2016 Suicide prevention trial for Kimberley region The Turnbull Government will establish a
landmark suicide prevention trial site in Western Australia’s remote Kimberley region, helping lead the way
in tackling suicide rates in indigenous communities across the country.
Private Health Insurance Circulars
16 August 2016 - PHI 61/16 - Prostheses List Management System (PLMS)
16 August 2016 - PHI 60/16 - Declaration Private Same-Day Hospital Information
12 August 2016 - PHI 59/16 - Private health insurers’ second tier default benefit rates annual audit
Publications
Australia’s Future Health Workforce – Anaesthesia report This report outlines an analysis of the
anaesthesia workforce and the results of updated supply and demand projections, as well as considering
capacity and distribution for vocational training into the future.
Australia. Health Practitioner Regulation Agency and the boards
19 August 2016 The Dental Board of Australia releases its latest communiqué.
18 August 2016 Call for applications Call for applications for appointment to the ACT/TAS/VIC Regional
Board of the Psychology Board of Australia, and health, performance and professional standards hearing
panels.
16 August 2016 New guidelines for patient health records Following wide consultation, the Chinese
Medicine Board (the Board) today published new guidelines for creating and maintaining health records.
DLA Piper
3
16 August 2016 Medical Board consults on revalidation in Australia Strengthened continuing
professional development and screening for at-risk doctors should underpin future approaches to
revalidation in Australia, according to an expert report to the Medical Board of Australia.
15 August 2016 Webinar: The continuing professional development (CPD) journey The Pharmacy
Board of Australia (the Board) is hosting a webinar on continuing professional development (CPD) for
pharmacists in September.
Australia. National Health & Medical Research Council (NHMRC)
19 August 2016 NHMRC Research Tracker – 19 August 2016
Australia. Pharmaceuticals Benefits Scheme (PBS)
19 August 2016 Post-market Review of biological Disease Modifying Anti-Rheumatic Drugs to treat
Severe Chronic Plaque Psoriasis and of Pulmonary Arterial Hypertension Medicines – Public
Consultation The public consultation process on the draft Terms of Reference is closed for the Postmarket Reviews of: biological Disease Modifying Anti-Rheumatic Drugs (bDMARDs) to treat Severe
Chronic Plaque Psoriasis and Pulmonary Arterial Hypertension (PAH) Medicines.
12 August 2016 PBS and RPBS Section 85 Date of Processing and Date of Supply Data The PBS and
RPBS Section 85 Date of Processing and Date of Supply Data has now been updated.
Australia. Therapeutic Goods Administration (TGA)
17 August 2016 Medicine labels: Guidance on TGO 91 and TGO 92 The new labelling Orders and
related guidance is now available.
17 August 2016 Updating medicine ingredient names New A6 leaflets have been published with space
for patient notes.
17 August 2016 Changes to sponsorship of therapeutic goods Guidance and updated forms for
sponsorship changes and notification obligations.
16 August 2016 TGC meeting statement, Meeting 42, 13 May 2016 The TGC 42 meeting statement has
now been published.
15 August 2016 TGA presentations: ARCS Scientific Congress Canberra, 10-11 August 2016
Presentations from the TGA on a variety of topics including regulatory affairs, medical devices, over the
counter medicines, prescription medicines, Good Manufacturing Practice and data integrity.
12 August 2016 Prescription medicines: registration of new chemical entities in Australia Added
registered new chemical entities for August.
Australian Institute of Health & Welfare (AIHW)
18 August 2016 Media release: AIHW study finds high use of specialist homelessness services for
those in alcohol and drug treatment
16 August 2016 Impacts of chronic back problems media release: 1 in 6 Australians have chronic
back problems
Australian Commission on Safety and Quality in Health Care
On the Radar – 22 August 2016 – Issue 287 (PDF 164KB) (Word 269KB)
On the Radar – 15 August 2016 – Issue 286 (PDF 90KB) (Word 139KB)
Australian Prudential Regulation Authority (APRA)
19 August 2016 APRA has announced the results of stress test of life insurance industry The
Australian Prudential Regulation Authority (APRA) has today released the results of its first comprehensive
stress test of the life insurance industry, conducted in 2015. The stress test included a representative mix
of diversified insurers, reinsurers and risk specialists who were subject to an adverse scenario over a
three-year period.
DLA Piper
4
New South Wales (NSW). Ministry of Health
Media Releases
18 August 2016 Meningococcal disease warning: NSW Health NSW Health is urging people to be alert
to the symptoms of meningococcal disease with five new cases reported in NSW in the last seven days.
There have been 39 cases of invasive meningococcal disease and four deaths in NSW so far this year,
compared to 27 cases and zero deaths during the same period last year.
16 August 2016 Protect vulnerable people as flu cases rise: NSW Health NSW Health is urging people
with flu symptoms to stay away from aged care facilities and vulnerable groups following a spike in
influenza presentations to emergency departments and 22 new influenza outbreaks in residential aged
care facilities in the last week. NSW Health’s latest Influenza Report shows that more than 1950 confirmed
influenza cases were reported from across the state last week.
Policy Directives & Guidelines
19 August 2017 Adoption Act 2000 - Release of Information
17 August 2017 Cardiac Monitoring of Adult Cardiac Patients in NSW Public Hospitals
17 August 2017 Statewide Standing Orders for the Supply or Administration of Medication for Public
Health Response
16 August 2017 Visiting Medical Officers - Rural Doctors Settlement Package Hospitals Indexation
of Fees - 1/8/2016
Queensland. Department of Health
16 August 2016 Life sciences giant chooses Brisbane for Asia Pacific headquarters In a major coup
for Queensland, life sciences giant BGI has chosen Brisbane as its Asia Pacific headquarters.
14 August 2016 Herston Quarter preferred tenderer announced Health and financial services company
Australian Unity has been announced as the preferred tenderer to develop the site of the former children’s
hospital at Herston in Brisbane and create a $1.1 billion health, aged care, residential and retail
destination.
South Australia. Department for Health & Ageing
19 August 2016 Media release: Reports of STIs a cause for concern South Australians are being
reminded to practise safe sex as new figures out today reveal almost 20 people are being diagnosed with
chlamydia or gonorrhoea each day.
Tasmania. Department of Health & Human Services
19 August 2016 New Integrated Maternity Service for North West Tasmania The Hodgman Liberal
Government is proud to announce the establishment of a new integrated North West maternity service,
modelled on expert advice to improve safety for mothers and babies after years of indecision.
16 August 2016 Delivering the Royal Hobart Hospital Redevelopment The Hodgman Liberal
Government is delivering the Royal Hobart Hospital Redevelopment, which will provide a facility for
generations of Tasmanians to come.
16 August 2016 Ministerial Statement on Health Madam Speaker, I rise to update the House on the
progress of our reforms to rebuild Tasmania’s health system - on our achievements to date and on the
future challenges we face as a Government and as a community.
16 August 2016 Bright new future for child health Today we are pleased to announce that the role of the
Child Health and Parenting Services (CHAPS) nurses will be strengthened through transferring the service
from the Department of Health and Human Services to the Tasmanian Health Service from January 1,
2017.
12 August 2016 12 new paramedics on the road in the North West As part of the Hodgman Liberal
Government’s commitment to overhaul our health system, we are ensuring patients get the right care, in
the right place, at the right time.
DLA Piper
5
Victoria. Department of Health
18 August 2016 Melbourne – The World’s Most Liveable City Again Melbourne has been voted the
World’s Most Liveable City for an unprecedented sixth-straight year. The prestigious Economist
Intelligence Unit’s Liveability Index surveys 140 of the world’s best cities, and we’ve blitzed the field again.
Melbourne secured perfect ratings for healthcare, education and infrastructure. It’s proof of what we
already know.
17 August 2016 Vaccinations work. Another win for science The Liberals axed the whooping cough
vaccination program for parents and we saw cases skyrocket. We brought the program back last year and
now notifications of whooping cough are down 40%.
17 August 2016 More Support For Hospitals To Tackle Family Violence Hundreds of hospital staff will
be trained to identify the signs of family violence and help patients experiencing harm to seek support as
part of a $1.2 million boost from the Andrews Labor Government. Minister for Health, Jill Hennessy, today
announced that funding for the Strengthening Hospital Responses for Family Violence initiative would
increase from $250,000 to more than $1.2 million this financial year.
17 August 2016 Protecting Babies From Deadly Whooping Cough The number of cases of babies with
whooping cough have more than halved in the last year after the Andrews Labor Government reinstated
the free whooping cough vaccine for new and expectant parents – axed by the former Liberal
Government. Categories: Media Release, Premier.
16 August 2016 Medicinal Cannabis One Step Closer For Victorian Patients Victorian patients are one
step closer to accessing medicinal cannabis with the Andrews Labor Government’s horticultural trial
entering its second phase and a new Independent Medical Advisory Committee now in place. Premier
Daniel Andrews today joined Minister for Health Jill Hennessy to announce the appointment of Professor
James Angus AO as the Chairperson of the new Independent Medical Advisory Committee.
16 August 2016 Last month, I visited a secret facility I can’t tell you where it is, but I can tell you what’s
going on there. It’s where we’re growing Victoria’s first crop of medicinal cannabis – a crop that will
improve the lives of hundreds upon hundreds of kids suffering from severe epilepsy. I can also tell you that,
as of today, our trial is entering phase two, and experts are looking at how our medicinal cannabis scheme
can be expanded to other patients with different conditions.
Western Australia (WA). Department of Health
Media Releases
19 August 2016 Minister for Health and Minister for Regional Development: Artworks arise for new
Pingelly Health Centre Acclaimed Western Australian artist Tony Pankiw has been chosen to create
works for the new Pingelly Health Centre, under the State Government's Percent for Art Scheme.
18 August 2016 Tips to stay healthy and avoid spreading respiratory illness Western Australians are
being reminded to take steps to protect themselves and their families from colds and flu.
13 August 2016 Minister for Mental Health: Consultation call on compulsory drug treatment Mental
Health Minister Andrea Mitchell today announced the first step in the process of drafting legislation to
introduce compulsory alcohol and drug treatment in Western Australia.
16 August 2016 Health care options reminder WA Health’s campaign continues to remind Western
Australians to consider alternative health care options to Emergency Departments (EDs) for nonemergency injury or illness.
12 August 2016 Prize-winning researcher in gene-fault quest A quest to discover the mechanism that
causes a particular protein-activating gene to switch off at birth has helped a Perth researcher collect one
of two research prizes awarded annually by the Department of Health.
New Zealand (NZ). Ministry of Health
19 August 2016 New Zealand Autism Spectrum Disorder Guideline The NZ Autism Spectrum Disorder
Guideline provides evidence-based information for health, disability and education professionals and social
service agencies who provide services for people with ASD, their families and whanau. It includes
DLA Piper
6
information about good practice that is evidenced-based and aims to improve the health, educational and
social outcomes for people with ASD.
17 August 2016 Evaluation of the Ministry of Health funded suicide prevention gatekeeper training
programmes These evaluation reports look at two training programmes focusing on suicide prevention.
17 August 2016 Standing Order Guidelines The Standing Order Guidelines are a resource for the health
professionals working with standing orders. It provides a user-friendly guide to assist issuers when
developing and/or reviewing standing orders. It also outlines the roles and responsibilities of health
professionals issuing standing orders and those working under standing orders.
16 August 2016 Taking Action on Fetal Alcohol Spectrum Disorder: Analysis of submissions This
publication summarises the submissions received on the discussion document Taking Action on Fetal
Alcohol Spectrum Disorder.
16 August 2016 Taking Action on Fetal Alcohol Spectrum Disorder: 2016–2019: An action plan This
action plan aims to create a more effective, equitable and collaborative approach to fetal alcohol spectrum
disorder. It is a cross-agency commitment designed to build on the work that is already under way by
providing coordinated support to those on the frontline of this issue.
United Kingdom. Department of Health
18 August 2016 Childhood obesity: a plan for action The government’s plan for action to significantly
reduce childhood obesity by supporting healthier choices.
18 August 2016 Soft Drinks Industry Levy: 12 things you should know The Soft Drinks Industry Levy is
a key part of the government’s childhood obesity strategy, and was first announced at Budget 2016.
United States of America (U.S.). Department of Health & Human Services (HHS)
12 August 2016 HHS declares a public health emergency in Puerto Rico in response to Zika
outbreak At the request of Governor Alejandro García Padilla, U.S. Health and Human Services Secretary
Sylvia M. Burwell today declared a public health emergency for Puerto Rico, signaling that the current
spread of Zika virus poses a significant threat to public health in the Commonwealth relating to pregnant
women and children born to pregnant women with Zika.
Australian Medical Association (AuMA)
18 August 2016 - Older male doctors face scrutiny Older male doctors who have been the subject of
several patient complaints could be targeted as part of proposals to 'proactively' identify those most likely
to pose a risk to patients.
18 August 2016 - Health – the best investment that a nation can make This week AuMA President, Dr
Michael Gannon, delivered a well-received speech to a crowded National Press Club in which he
described health as the best investment that a nation can make. Dr Gannon outlined a range of important
issues impacting on health delivery and how they should be addressed.
18 August 2016 - AuMA calls for independent body to investigate asylum seeker conditions The
AuMA has called for an independent statutory body to investigate and report on health and living
conditions for asylum seekers, following damning reports of abuse, trauma, and self-harm on Nauru.
18 August 2016 - Cutting visas not the key to getting more locally trained doctors to go rural A
Department of Health proposal to tighten visa rules for some international medical graduates would not on
its own lead to more local medical graduates working in under-served rural areas, the AuMA has said.
18 August 2016 - Life support equipment and registration for patients – how can GPs help? The
Australian Energy Regulator (AER) is raising awareness among GPs regarding a key consumer protection
contained in energy laws that relates to customers that require continuous power in order to operate life
support equipment. This protection includes strict controls on when customers can be disconnected from
their power supply and ensures they receive advance notice of a planned interruption to their power
supply.
18 August 2016 Making a difference In the latest issue of Australian Medicine, Chair of the AuMA Council
of General Practice, Dr Richard Kidd, writes about the role of continuous quality improvement in delivering
DLA Piper
7
quality health care. He discusses the approaches to evaluation and improvement and the importance of
quality data, and points out that the key challenge is to find a way to answer the question that really
matters – have we made a difference.
18 August 2016 This week in the Medical Journal of Australia (MJA) An editorial in this week’s issue of
MJA discusses the problem with modern endocrinology, explaining that improved doctor-patient
communications and more research are necessary to better understand the real outcomes for some
patients with endocrine disorders.
British Medical Association
18 August 2016 Health experts condemn 'weak' child obesity plan The Government has ‘rowed back
on its promises’ and let big business interests trump those of children by producing a watered down
childhood obesity strategy.
ABOUT US
Caroline Atkins
Caroline Atkins is the Office Managing Partner for the Canberra office of DLA
Piper and has worked extensively in the health sector for Australian Government
agencies. Her experience includes the conduct of major technology projects for
the health sector, such as in the e-health and aged care sectors, and in advising
the Commonwealth on the implementation of policy programs in contractual
arrangements (including for medical indemnity insurance and for CSO
arrangements for PBS funding). She has also advised the National Blood
Authority on major Commonwealth contracts for the supply of blood products
including with the Red Cross and CSL. Caroline's commercial experience
extends over 30 years and also includes significant experience in ICT
outsourcing, whole-of-government technology procurements, intellectual
property rights licensing, contract management, procurement strategy and
dispute resolution.
Contact Details
T +61 2 6201 8789
[email protected]
MORE INFORMATION
Contact your nearest DLA Piper office:
BRISBANE
PERTH
Level 9, 480 Queen Street
Brisbane QLD 4000
T +61 7 3246 4000
F +61 7 3229 4077
[email protected]
Level 31, Central Park
152–158 St Georges Terrace
Perth WA 6000
T +61 8 6467 6000
F +61 8 6467 6001
[email protected]
CANBERRA
Level 3, 55 Wentworth Avenue
Kingston ACT 2604
T +61 2 6201 8787
F +61 2 6230 7848
[email protected]
MELBOURNE
Level 21, 140 William Street
Melbourne VIC 3000
T +61 3 9274 5000
F +61 3 9274 5111
[email protected]
SYDNEY
Level 22, No.1 Martin Place
Sydney NSW 2000
T +61 2 9286 8000
F +61 2 9286 8007
[email protected]
www.dlapiper.com
DLA Piper is a global law firm operating through various
separate and distinct legal entities.
For further information, please refer to www.dlapiper.com
Copyright © 2016 DLA Piper. All rights reserved.
If you would like to reproduce any of this publication, please
contact Michael Regos on +61 3 9274 5437 or
[email protected].
[1203381745]
DLA Piper
8