The view from the bench
According to the most recent District Court of Western Australia Annual Review, the Court’s civil caseload in 2019 continued to be heavily weighted towards personal injury claims with the majority arising from workplace accidents and motor vehicle accidents.
The Annual Review recorded an overall increase of 7.6% in new civil case lodgments including appeals in 2019, whilst the number of new writs lodged increased 5.4%.
The latest Report on Civil Cases in the District Court of Western Australia shows the number of medical negligence cases lodged increased from 86 to 123 between 2017/2018 and 2018/2019 but otherwise remained stable and did not change overall in the 5-year period between 2014 and 2019.
There is a declining 5-year trend in medical negligence cases being finalised (whether by trial, discontinuance, settlement etc) which suggests that in circumstances where the number of medical negligence cases being brought by writ in District Court is stable, cases are taking longer to be finalised.
The view from the board
The AHPRA Performance Report WA for the period of December 2020 indicates notifications about registered health practitioners continues to increase, with a 9% increase in notifications received. The latest AHPRA Annual Report indicates standards of clinical care continue to be the primary issue notified. The other most common type of complaint are medication, communication, health impairment and behaviour.
The WA State Administrative Tribunal Annual Report 2020 indicates there were less SAT applications received relating to vocational regulation matters compared to previous years. This suggests that whilst the likelihood of a health practitioner facing a notification continues to increase, the relevant Board is more likely to deal with the matter ‘in-house’ or via Panels rather than commence a matter in the Tribunal.
Future claims and key issues
Looking to 2021/22, we foresee:
- continued disciplinary issues arising out of a practitioner’s compliance with professional obligations when using social media – for example, the COVID-19 pandemic has seen some practitioners use their social media platforms to disseminate medical misinformation about COVID-19 or to share anti-vaccination sentiments (see for example Ellis v Medical Board of Australia (Review and Regulation) [2020] VCAT 862);
- vaccine-related injury claims – the Federal Health Minister has sought to assure the Royal Australian College of General Practitioners and the Australian Medical Association that doctors are indemnified by the Commonwealth Government for injury asserted to have been caused by the vaccine. However, the recent Australian Technical Advisory Group on Immunisation advice on the AstraZeneca vaccine will place significant pressure on vaccine administrators to ensure that all vaccine recipients are fully aware of the risks and benefits of vaccination and provide fully informed consent;
- telehealth – claims or issues arising from risks associated with such services including inadequacy of examination and follow-up, privacy and security of health information and illegal recording of clinical consultations;
- direct liability arising from COVID-19 – for example, failing to prevent exposure to COVID-19, operating without sufficient equipment, or failing to provide medication.
