Abstract
| Original language | English |
|---|---|
| Pages (from-to) | 78-81 |
| Number of pages | 4 |
| Journal | Australian Health Law Bulletin |
| Volume | 26 |
| Issue number | 5 |
| Publication status | Published - Jun 2018 |
Fingerprint
Cite this
}
An established practice? Refining the defence of competent medical practice. / Lu, Andrew.
In: Australian Health Law Bulletin, Vol. 26, No. 5, 06.2018, p. 78-81.Research output: Contribution to journal › Article
TY - JOUR
T1 - An established practice? Refining the defence of competent medical practice
AU - Lu, Andrew
PY - 2018/6
Y1 - 2018/6
N2 - The NSW Court of Appeal has held that that it is not necessary to prove the existence of “an established practice” when pleading a defence based on what is widely accepted as competent medical practice or competent professional practice. In 2013, the NSW Court of Appeal in McKenna v Hunter & New England Local Health District1 (McKenna) held by majority that proving the existence of an established practice at the time of the alleged negligence was necessary to invoke the operation of a defence under s 5O of the Civil Liability Act 2002 (NSW) (the Act). Similar provisions exist in other state and territory legislation. The appeal decision2 in McKenna was unanimously overturned by the High Court in 2014 which ruled that the health facility and assessing psychiatrist did not owe the deceased’s relatives a duty of care. The High Court was not required to consider s 5O or the question of competent professional practice, reserving this for a future case.3 The NSW Court of Appeal in the decision has now considered this issue in Sparks v Hobson; Gray v Hobson4 (Sparks), finding that it is not necessary to prove the existence of an established practice when pleading a defence based on what is widely accepted as competent medical practice or competent professional practice.
AB - The NSW Court of Appeal has held that that it is not necessary to prove the existence of “an established practice” when pleading a defence based on what is widely accepted as competent medical practice or competent professional practice. In 2013, the NSW Court of Appeal in McKenna v Hunter & New England Local Health District1 (McKenna) held by majority that proving the existence of an established practice at the time of the alleged negligence was necessary to invoke the operation of a defence under s 5O of the Civil Liability Act 2002 (NSW) (the Act). Similar provisions exist in other state and territory legislation. The appeal decision2 in McKenna was unanimously overturned by the High Court in 2014 which ruled that the health facility and assessing psychiatrist did not owe the deceased’s relatives a duty of care. The High Court was not required to consider s 5O or the question of competent professional practice, reserving this for a future case.3 The NSW Court of Appeal in the decision has now considered this issue in Sparks v Hobson; Gray v Hobson4 (Sparks), finding that it is not necessary to prove the existence of an established practice when pleading a defence based on what is widely accepted as competent medical practice or competent professional practice.
KW - Health Law
KW - Medical Negligence
KW - Civil Liability Act
M3 - Article
VL - 26
SP - 78
EP - 81
JO - Australian Health Law Bulletin
JF - Australian Health Law Bulletin
SN - 1038-1473
IS - 5
ER -