Guild Insurance Ltd v Hepburn [2014] NSWCA 400 (24 November 2014)

This case is interesting only in terms of indemnity contract and insurance. It is about a dentist who was defending allegations in Queensland and NSW.

December 5th, 2014|

About the Author: Brad Wright

Brad Wright - Barrister

1 month ago

𝗪𝗵𝗮𝘁 𝘁𝗿𝗲𝗮𝘁𝗺𝗲𝗻𝘁 𝗼𝗽𝘁𝗶𝗼𝗻𝘀 𝘀𝗵𝗼𝘂𝗹𝗱 𝗯𝗲 𝗽𝗿𝗲𝘀𝗲𝗻𝘁𝗲𝗱 𝘁𝗼 𝗽𝗮𝘁𝗶𝗲𝗻𝘁𝘀?𝗠𝗰𝗖𝘂𝗹𝗹𝗼𝗰𝗵 𝗮𝗻𝗱 𝗼𝘁𝗵𝗲𝗿𝘀 (𝗔𝗽𝗽𝗲𝗹𝗹𝗮𝗻𝘁𝘀) 𝘃 𝗙𝗼𝗿𝘁𝗵 𝗩𝗮𝗹𝗹𝗲𝘆 𝗛𝗲𝗮𝗹𝘁𝗵 𝗕𝗼𝗮𝗿𝗱 (𝗥𝗲𝘀𝗽𝗼𝗻𝗱𝗲𝗻𝘁) (𝗦𝗰𝗼𝘁𝗹𝗮𝗻𝗱) [𝟮𝟬𝟮𝟯] 𝗨𝗞𝗦𝗖 𝟮𝟲)In McCulloch, the court principally dealt with what legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient. The judgement can be watched here: www.supremecourt.uk/watch/uksc-2021-0149/judgment.html which sets out the facts quite conveniently.Practically, the court decided that the correct and straightforward approach is that a doctor has a duty of care to inform a patient of the reasonable alternative treatments in addition to the treatment recommended and that the legal test for determining what are reasonable alternative treatments is the professional practice test.So perhaps the law could be stated in the UK to be that health practitioners should consider material risks as to proposed treatment, then present alternatives that might be reasonable options in the opinion of their peers.Ultimately, some superior court consideration of this in Australia will likely occur.However for now, health practitioners might consider this consent process (at least in the UK) as now involving the potential consideration of the materiality of risks of proposed treatment, and then a considered explanation of alternatives and presumably with the materiality risks of the alternatives explained although the court did not mercifully go that far ! ... See MoreSee Less

Watch McCulloch and others (Appellants) v Forth Valley Health Board (Respondent) (Scotland) - The Supreme Court

www.supremecourt.uk

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Brad Wright - Barrister

1 month ago

𝗗𝗲𝗲𝗱𝘀 𝗼𝗳 𝗥𝗲𝗹𝗲𝗮𝘀𝗲 𝗺𝗮𝘆 𝗯𝗲 𝗰𝗵𝗮𝗻𝗴𝗶𝗻𝗴...Disputes about treatment are often resolved by a practitioner agreeing to pay a sum in full settlement (as a result of disputes about dental and medical treatment) to avoid further litigation for personal injury.Over the years, lawyers and occasionally indemnifiers have included terms that purport to have the effect of barring a complaint to a regulator after settlement in deeds of release.As a result of this practice particularly in relation to cosmetic surgery – the subject of AHPRA changes to legislation – it is understood the Boards and Health ministers are in the process of legislation to ensure that clauses in a non-disclosure or deeds of release purporting to prevent complaint to a regulator will be prohibited.Presently, such clauses are deemed to be unenforceable by health law practitioners, and are these as some sort of disincentive- but it seems likely the legislation will go further and prohibit these clauses and it is not outside the realms of possibility that practitioners may be obliged to inform patients of their right to make a notification.This will remove the present uncertainty - possibly untested in higher courts- that a prohibition of exercising a statutory power or right by preventing a complaint is against public policy.This does not mean that once a matter is settled a complainant patient is obligated to make a complaint, and sensible informed early resolution is always the best practice where possible.Deeds of release are best drafted by appropriate lawyers, and using old templates may soon be even more unwise. ... See MoreSee Less

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Brad Wright - Barrister

4 months ago

𝗛𝗲𝗮𝗹𝘁𝗵 𝗖𝗮𝗿𝗲 𝗖𝗼𝗺𝗽𝗹𝗮𝗶𝗻𝘁𝘀 𝗖𝗼𝗺𝗺𝗶𝘀𝘀𝗶𝗼𝗻 𝘃 𝗙𝗿𝗮𝘀𝗲𝗿 [𝟮𝟬𝟮𝟯] 𝗡𝗦𝗪𝗖𝗔𝗧𝗢𝗗 𝟭𝟴𝟳The Tribunal was dealing with a complaint from the Dental Council of NSW in relation to a dentist who allowed a non registrant Mr Pegios to perform treatment in his practice.At [32] the Tribunal found that the respondent dentist accepted that he knew that George Pegios’ registration as a dentist had been cancelled for reasons including that one of George Pegios’ patients had died as a result of treatment that he had provided.The Commission has asked that the dentist have their registration cancelled for 12 months.Those who carry out restricted dental acts may be liable for breaches of the National Law otherwise and can be prosecuted in a Local or Magistrates Court - see carrying out a 'restricted dental act' (section 121)121 Restricted dental acts(1) A person must not carry out a restricted dental act unless the person--(a) is registered in the dental profession or medical profession and carries out the restricted dental act in accordance with any requirements specified in an approved registration standard; or(b) is a student who carries out the restricted dental act in the course of activities undertaken as part of--(i) an approved program of study for the dental profession or medical profession; or(ii) clinical training in the dental profession or medical profession; or(c) carries out the restricted dental act in the course of carrying out technical work on the written order of a person registered in the dentists or dental prosthetists division of the dental profession; or(d) is a person, or a member of a class of persons, prescribed under a regulation as being authorised to carry out the restricted dental act or restricted dental acts generally.Maximum penalty--$60,000 or 3 years imprisonment or both.Although this was not a holding out case and had some particular unique facts, health practitioners should be aware that they have a duty to act professionally and not facilitate or permit non registrants to practice.This is in addition to not holding out non registrants to be practitioners. See ss 113-118 National Law in each state.𝙄𝙩 𝙞𝙨 𝙞𝙢𝙥𝙤𝙧𝙩𝙖𝙣𝙩 𝙩𝙝𝙖𝙩 𝙥𝙚𝙧𝙞𝙤𝙙𝙞𝙘 𝙘𝙝𝙚𝙘𝙠𝙨 𝙤𝙛 𝙩𝙝𝙚 𝙧𝙚𝙜𝙞𝙨𝙩𝙚𝙧 𝙖𝙧𝙚 𝙥𝙚𝙧𝙛𝙤𝙧𝙢𝙚𝙙 𝙛𝙤𝙧 𝙖𝙣𝙮 𝙘𝙤𝙣𝙩𝙧𝙖𝙘𝙩𝙤𝙧𝙨 𝙖𝙣𝙙 𝙚𝙢𝙥𝙡𝙤𝙮𝙚𝙚𝙨.To have non registered practitioner employees' names listed on a website for example has serious criminal penalties, recently increased significantly.The stage one decision is available here -https://www.caselaw.nsw.gov.au/decision/18c653bd51a995eaf3f4af4f ... See MoreSee Less

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Guild Insurance Ltd v Hepburn [2014] NSWCA 400 (24 November 2014)

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About the Author: Brad Wright

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