The latest insights from our Health Law team.
In this edition:
Learn more about Russell Kennedy's expertise in the Health sector here.
If you'd like to stay up to date with Russell Kennedy insights, please sign up here.
Flaw in Telstra Health’s Argus software exposed medical records to hackers
Telstra Health has urgently addressed potential privacy breaches caused by a flaw in its Argus software.
Designed to securely communicate confidential patient information in-line with privacy standards, the software is used by more than 40,000 providers, including hospitals, GPs, specialists, primary health networks and allied health providers.
A vulnerability was identified in legacy versions of the software which made it accessible to unauthorised parties where a customer's remote desktop connections were still open. It has been confirmed that the Argus software does not connect with My Health Record.
The flaw can be addressed with a security patch, however Telstra has advised clients who no longer use the program, to uninstall it and ensure all associated accounts are removed from computers.
A statement from the Australian Digital Health Agency can be read here.
Victoria will partner with Seattle experts to implement voluntary assisted dying laws
The Victorian government has recently announced that it will partner with the Seattle Cancer Care Alliance to support the implementation of the voluntary assisted dying laws passed by Victorian parliament late last year prior to the people being able to access the scheme in June 2019.
Washington, USA, legalised voluntary assisted dying in 2008 and the Seattle Cancer Care Alliance has since become well-known for effectively incorporating access to voluntary assisted dying into existing treatment options offered to patients. The partnership aims to allow Victoria to utilise the expertise of clinicians who form part of Seattle’s successful Death with Dignity Program.
The Death with Dignity Program provides a multi-disciplinary approach to assisting patients to access the Washington voluntary assisted dying scheme. Participants are assigned a patient advocate, a social worker and physicians who assist throughout the process.
In addition to practical implementation assistance, it is expected the partnership will form a valuable resource for research and education into the future.
Read the Victorian government’s media release here.
Children with gender dysphoria no longer have to seek court approval to undergo treatment
Parents, minors and doctors are being given their autonomy back when it comes to cases of gender dysphoria. The Family Court has determined that where all three agree, parents will not have to seek court consent for Stage 3 treatment for gender dysphoria in adolescents and adults.
In a ruling last year, the Full Family Court in Re Kelvin [2017] held that parents no longer had to obtain the Court’s approval before a minor could access Stage 2 treatment for gender dysphoria. Stage 2 treatment administers hormones which affirm the minor’s gender identity, rather than the gender they are born with. Stage 3 treatment is surgical.
In this latest case, Re: Matthew [2018], the Court was asked for its consent for a 16 year old, who was born genetically female but identifies as male, to undergo a double mastectomy. The Court has held that it is not necessary to give its consent where:
- the minor suffers from diagnosed gender dysphoria;
- the minor is competent to the requisite level; and
- there is no disagreement from parents or doctors as to the treatment.
The judge held that the treatment was therapeutic, in accordance with Re Marion [1992], which was followed in Re Kelvin [2017]. Despite being surgical in nature, the treatment was found to be therapeutic because the minor’s treating practitioners believed that it would be administered for the purpose of treating a psychiatric condition.
Minors whose parents disagree with their treatment and those who are in State care will need require Court consent before they can undergo treatment. Further, this case does not have the full affirmation of the Full Court as the Re Kelvin [2017] decision did; it is a decision at first instance, and so remains to be tested.
Read more about gender dysphoria and its medico-legal history here.
AHPRA Register changes improve consumer access to public information
Following AHPRA and the Medical Board of Australia’s independent review of the use of chaperone conditions in late 2016, the Medical Board of Australia, supported by AHPRA, has implemented the final recommendation from that review.
The online register now includes links for individual medical practitioners on the national register to publish disciplinary decisions, such as those from the Victorian Civil and Administrative Tribunal.
Professor Ron Paterson who conducted the independent review said that implementing the final recommendation means that “patients and the public will be better informed and protected by these changes to the management of sexual misconduct cases.”
See our previous alert on the Chaperone Report here.
Read more here.
Inquiry into drug law reform
On 27 March 2018, the Law Reform, Road and Community Safety Committee published the Report into Drug Law Reform.
The Report explored the areas of prevention, law enforcement, treatment and harm reduction with regard to drug use. The Committee made 50 recommendations after an extensive inquiry that received more than 230 submissions and held nine days of public hearings.
Among its key recommendations, the Report highlights that:
- the Victorian Government's approach to drug policy be based on effective and humane responses that prioritise health and safety outcomes;
- law enforcement responses should focus on trafficking and criminal behaviour arising from drug use;
- people apprehended for personal drug use or possession should be directed to treatment and support options; and
- increased funding for treatment and support services is needed to address substance use issues and reduce offending.
These recommendations acknowledge that while people continue to use substances, whether illicit or pharmaceutical, more needs to be done to minimise the associated harms
There is also growing recognition among governments and the community that greater balance between traditional law enforcement and health‑based responses will have a broader positive effect on the health and safety of communities.
Read more and access the Report here.
Michael Gorton AM will conduct the review of the Assisted Reproductive Treatment Act
Russell Kennedy Principal, Michael Gorton AM will lead this 12-month review which is scheduled to commence this month. The primary focus of the review is to ensure women and families using assisted reproduction are supported through their entire treatment and receive the correct information throughout their journey.
The issues being considered include:
- Whether there are adequate safeguards to protect consumers using or intending to use assisted reproductive treatment services
- Whether regulatory framework remains appropriate within an evolving market for assisted reproductive treatment
- Whether evolving market and regulatory framework has implications for access and affordability of assisted reproductive treatment services.
To read the media release, click here.