Issue One, 12 April 2012  
The Medical Indemnity Industry Association of Australia (MIIAA) is the representative voice of the medical indemnity industry.

The member organisations of the MIIAA provide medical indemnity services to over 70% of Australia's medical practitioners. The association represents those doctors on issues that impact on the structure and delivery of medical indemnity and related services.

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Table of Contents
From the Chairman
The medical indemnity industry in Australia provides an essential service that underpins the Australian health system. It allows patients and their doctors to get on with not only investigation, diagnosis and treatment but the full and varied spectrum of disease prevention, wellness advice and clinical research without having to pay explicit regard to matters of liability and indemnity.

The industry is currently well placed to ensure affordable, sustainable insurance is available to doctors thus allowing workforce decisions to be independent of indemnity cover. The reforms made circa 2001 to the industry and to tort law have helped create this environment.

As inevitable changes are introduced into the system our members wish to remain ahead of the curve in interpreting the likely outcomes of change and advocating for solutions that create a sustainable balance for the medical profession and community.

These current challenges include the bedding in of National Registration, the ramifications of mandatory reporting and how AHPRA will be responding to complaints about doctors. The MIIAA is interested in the fairness, cost and utility of these activities and will monitor and comment on these aspects. The Doctors Health Advisory services have been placed in flux as a byproduct of these arrangements and we are engaging in discussions to help ensure these important services continue nation wide.

The implementation of a National Disability support scheme is currently a topic of some discussion at the Council of Australian Governments and in the press. This affects the potential for compensation for medical accidents and promises no fault based future care of our society’s most vulnerable people. Such an expensive, complex and politically sensitive plan will require careful implementation and goodwill between jurisdictions in order to achieve the policy outcomes desired while avoiding waste and unintended adverse consequences. The MIIAA stands ready to assist in this process as it applies to medical practice, and has released a position statement to this effect which is contained in this newsletter.

With the support of our industry partners the MIIAA is planning an engaging program for our annual Forum to be held in Melbourne on October 18th 2012. This will be an excellent time to get together to discuss and advance the thinking on all of the issues above and more, as well as to network with colleagues in our field. Please tell us what is on your mind if you have a suggestion as to Forum topics.

Meantime, thanks for taking a minute to consider the articles that our colleagues have put together in this issue - we appreciate your time.

Dr Andrew Miller MBBS, LLB (Hons), FANZCA, FACLM
Chairman

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Position Statement - Proposed National Injury and Disability Schemes
The MIIAA released a position statement on the proposed National Injury and Disability Schemes on 21 March 2012.

The Federal Government is proposing to introduce two complementary schemes to deliver a fairer system of support, that being the state administered National Injury Insurance Schemes (NIIS) and the National Disability Insurance Scheme (NDIS). MIIAA strongly supports the intent of this important social policy and encourages the Federal Government to commit funding and move now to establish the National Disability Insurance Agency so that the reasonable expectations of the community are fulfilled as soon as possible.

As the MIIAA believes that the definition of ‘medical accident’ is critical to the success of the scheme, it requires expert advice from the medical indemnity industry to help deliver the intended policy outcome.

In the event of delay or disagreement between jurisdictions on implementation, the MIIAA recommends the short term implementation of a scheme catering for those with, for example, cerebral palsy, head injury and immunisation complications. This could be expanded to other groups as any political obstacles are overcome and would be preferable to no schemes at all.

The MIIAA offers to help the Federal Government to deliver the medically related components of this important social policy.

Read the full Position Statement

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Social Media, Health and the Law
The pace of technological change is relentless. Twitter, Facebook and blogs are common place. While social media can lead to a variety of networking and marketing opportunities for health practitioners and large medical organisations, it brings the potential for individuals and organisations to be responsible, knowingly or unknowingly, for the publication of defamatory, misleading, deceptive or other adverse comments to millions of people in many different legal jurisdictions.

The law regulating social media is constantly evolving and there are few precedents in Australia. What is not in dispute is that if an individual or organisation posts content on its own website, Facebook page, twitter feed or blog then that individual or organisation is responsible for the publication of that content and may be prosecuted in the criminal courts or sued in the civil courts. What is less clear is who is responsible for third party comments published on a website, blog, Facebook page or Twitter account. Even if an individual or organisation did not provide or post the comments to their website, Facebook page, blog or Twitter account is it still possible for them to be held responsible?

In a copyright case in 2011 the Full Court of the Federal Court of Australia held that websites and internet service providers are not responsible for what their users do with the services provided to them (Roadshow Films Pty Ltd v iiNet Limited). Around the same time however a single Judge of the Federal Court of Australia also reviewed this issue in the case of Australian Competition and Consumer Commission v Allergy Pathway Pty Ltd (formerly Advanced Allergy Elimination Pty Limited). The Federal Court had to determine if Allergy Pathway Pty Ltd had published third party testimonials on its Facebook and Twitter pages in contravention of previous undertakings that it would not publish misleading and deceptive statements about its ability to identify, treat and cure allergies. The company had not written the testimonials nor posted them. It did however, become aware of them and did not take steps to have them removed.

The Federal Court concluded that:
‘… merely facilitating the commission of a wrong will not result in liability but it is another thing to procure or conspire in the commission of the wrong, in which case liability may be imposed, particularly if the procurer is aware of the material being published and has accepted general responsibility for its publication.’

It was held that the company had accepted responsibility and become the ‘publisher’.

Whilst the facts of this case relate to undertakings made to a regulatory body, the Australian Courts may well apply the same reasoning to determine the ‘publisher’ in a wide variety of other cases. The High Court of Australia has already determined that defamatory material published online around the world will be actionable in Australia if it is read or downloaded in that jurisdiction (Dow Jones & Co Inc v Gutnik).

The starting position is that if it is possible for an individual or organisation to monitor or delete content on a website, Facebook page or blog then it must ensure that these media are carefully monitored and any problematic posts are deleted (or appropriately dealt with) as soon as they come to the individual or organisations’ attention.

Difficulties may arise with a Twitter account as it is a real time information network that allows an individual or organisation to send a public message (or 'tweet') to anyone who follows the account. This message can be viewed by anyone in the world. If a tweet containing adverse comments is posted by a third party to, or in response to, the Twitter account of an individual or organisation, it cannot be removed.

It is not inconceivable that a third party tweet may result in a claim that an individual or organisation is liable for the publication of comments that may be misleading or deceptive, defamatory or even discriminatory. To prevent this occurring there should be careful monitoring of Twitter feeds. If an entry is made by a third party which is cause for concern, immediate action should be taken to qualify it so the individual or organisation will not be considered to have also published that information. It may well be that the Courts are likely to expect immediate action as Twitter is a real time network.

Whilst taking advantage of the enormous opportunities created by social media it is important that health practitioners and medical organisations do not overlook the challenges it brings and the potential for significant liability if these challenges are not addressed.

Karen Keogh
Special Counsel
TressCox, Sydney
Karen_Keogh@tresscox.com.au

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Personally Controlled Electronic Health Records - Implications for Medical Practitioners
The Personally Controlled Electronic Health Records (PCEHR) scheme is due to commence in Australia from 1 July 2012. The MIIAA recently provided a submission concerning the Personally Controlled Electronic Health Records Bill 2011 and the Personally Controlled Electronic Health Records (Consequential Amendments) Bill 2011 to the Senate Standing Committee on Community Affairs.

The submission was prepared by Alison Choy Flannigan of Holman Webb on behalf of the MIIAA.

The submission considered the medico-legal implications and a number of other areas of the proposed PCEHR scheme. The key points cover:
1. Timing and consultation
2. Funding
3. Concerns of the health care practitioners
4. Medico-legal issues
4.1 Forseeability of risk
4.2 Liability associated with patient election
4.3 Access to the PCEHR for defence purposes
4.4 Penalties
4.5 Privacy concerns of healthcare practitioners

Read the full submission

The Senate Committee released its report on 19 March 2012 and made the following recommendations:

  • The committee recommends that the review of the operation of the Act that will occur after two years pursuant to Clause 108 specifically consider the issue of the appropriateness of the vesting of the System Operator responsibility in the Secretary of the Department of Health and Ageing as well as possible alternative governance structures.
  • The committee recommends that the review of the operation of the Act that will occur after two years pursuant to Clause 108 consider the opt-in design of the system including consideration of the feasibility and appropriateness of a transition to an op-out system.
  • The committee recommends that the bills be passed.
The Coalition Senators did put forward a dissenting report which recommended that "the PCEHR legislation be delayed until July 1, 2013, in order to satisfactorily address the many issues raised during this Inquiry, especially those relating to governance, patient risk, privacy and interoperability are resolved."

A copy of the full Senate Committee report is available online

The Minister for Health provided some clarification around costs on 28 March 2012, announcing that MBS consultation items will be available to GPs for creating or adding to a shared health summary on an eHealth record as part of a consultation.

Public consultation is now open on the proposals for regulations and rules for the PCEHR System. The documentation is available here.

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PIAA International Section Conference 2011
The MIIAA was proud to host the 2011 PIAA International Section Conference in Melbourne in October 2011. Both anecdotal and documented feedback for the conference was overall extremely positive in terms of the program content and the calibre of the speakers. The Organising Committee would like to thank all of the speakers, session chairs and delegates for their contributions to such an outstanding event.

The delegate evaluation showed that the top five sessions were:

  1. Handling the Physician who Exhibits Disruptive Behaviour
  2. The Evolving Role of Experts in Legal Actions
  3. The Australian Medical Indemnity Market
  4. Practising in an Electronic Environment - Legal Issues Associated with Electronic Records and E-discovery
  5. The Insurance and Financial Environment
The feedback provided will assist in the development of future MIIAA Forums and events.

In addition to providing an opportunity for those involved in the industry internationally to meet and exchange ideas and experiences, the conference contributed to the community with delegates raising $3,755 for the Cerebral Palsy Alliance and Think Pink Foundation. The proceeds were split equally between the two groups.

Raffle prizes were generously donated by Mont Blanc .

For more information about the conference, a review from the First Quarter 2012 issue of Physician Insurer, the publication of the PIAA can be read here.

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MIIAA Annual Forum 2012
SAVE THE DATE!

The Forum will be held in Melbourne on 18 October 2012.

Updated details will be released online here.
 
Thanks to our Industry Partners
 
 
 
 
 
Become an Industry Partner
An MIIAA Industry Partner wishes to demonstrate their commitment to the industry by aligning their organisation with the recognised industry body.

More information.....