• Civil liability
• Criminal liability
• Disciplinary action
• Honest and reasonable mistakes by medical practitioners
• Non-touching medical treatment
• Professional indemnity insurance

8.1 This chapter examines the legal liability of medical practitioners who treat young people without first obtaining a legally valid consent, where such consent is required by law.¹ It also looks at the forms of protection afforded to medical practitioners, both from liability and from personal payment of damages, when they treat young people.

CIVIL LIABILITY

Intentional wrongs

8.2 A medical practitioner who treats a patient without first obtaining a legally valid consent, where such is required, may attract liability from three separate torts or wrongs: battery, assault and false imprisonment.

8.3 Battery is an act of one person which directly causes some physical contact with another person. Any unauthorised physical contact with another may constitute battery.² The touching need not be accompanied or motivated by hostile intent.³ Consequently, a medical practitioner who touches a patient when treating him or her, and mistakenly believes that a legally valid consent has been obtained, may be civilly liable for battery.⁴

8.4 Assault is conduct that causes a person to apprehend⁵ the infliction of bodily harm.⁶ An assault may be committed on its own, where no actual physical contact is made. However, assault and battery may be committed in quick succession, which is the type of situation that could arise in the context of medical treatment without consent.

8.5 False imprisonment occurs when a voluntary act of one person directly subjects another person to total deprivation of freedom of movement. Any restraint upon the personal liberty of an individual, which is not warranted by law, is false imprisonment, provided it is total, that is, there is no alternative means of exit.⁷ The tort may be committed even if the person restrained was not aware of the restraint at the time.⁸ Furthermore, the act occasioning the false imprisonment need not have been motivated by malice.⁹ Hence, a medical practitioner who acted with a patient’s best interests in mind could still be liable for the false imprisonment.

8.6 The New South Wales case of Hart v Herron¹⁰ provides an example of where the provision of medical treatment led to a claim for false imprisonment. The plaintiff alleged that, after going into a private hospital, he had been asked to sign a form consenting to such treatment, but had refused. He said that a short time later a nurse asked him to take a tablet, which he did, after which everything went black. His next recollection was waking up and eventually discovering that he had been treated by the psychiatrist with Deep Sleep Therapy, which involved electroconvulsive therapy and narcosis therapy. The court held that the medical practitioner and hospital had wrongfully imprisoned the plaintiff.

8.7 Consent of the plaintiff may be a defence to a civil action for an intentional wrong. In Hart v Herron, for example, the defendant would not have been found liable for false imprisonment if he had evidence that the plaintiff had given his consent. Likewise, it has been said no action lies in battery or assault if the defendant can prove that the plaintiff consented to the bodily contact, or its apprehension, of which the latter complains.¹¹ In the context of a medical treatment, the consent necessary to negative battery is satisfied by the patient being advised in broad terms of the nature of the proposed procedure.¹² This is in contrast to an action for negligence based on failure to obtain a patient’s “informed consent”,¹³ which requires medical practitioners to disclose more information to the patient, in particular, any material risk of the proposed treatment.¹⁴

Negligence

8.8 Negligence consists of the breach of a legal duty of care owed by one person (in this case, the medical practitioner) to another person (the patient) that results in damage.¹⁵ Failure to obtain a person’s consent to medical treatment, while giving rise to a claim for an unintentional wrong, is not itself a basis for a negligence claim.¹⁶ However, where that consent is obtained without the medical practitioner first disclosing all of the material risks of the medical treatment that is proposed, then the medical practitioner may be liable to the patient in negligence.

8.9 In this context, the term “informed consent” is used in the United States to refer to a medical practitioner’s duty to disclose information to his or her patient about the medical treatment for which consent is sought. However, the High Court of Australia has said that the phrase, “informed consent”, is not very useful for the purposes of Australian law because it creates the impression of being a test for the validity of a patient’s consent. The law in this jurisdiction refers to the duty of medical practitioners to warn patients of any material risk inherent in a proposed treatment. A risk is material if, in the circumstances of a particular case, a reasonable person, in the patient’s position, if warned of the risk, would be likely to attach significance to it, or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.¹⁷

8.10 This Commission, in conjunction with the Australian Law Reform Commission and the Law Reform Commission of Victoria, has previously examined the principles governing the provision of information by medical practitioners to patients. In the report entitled, Informed Decisions About Medical Procedures,¹⁸ these recommendations were made:

• the common law standard of care that applies to the provision of information to patients should not be replaced by a statutory standard;
• guidelines for the provision of information to patients concerning proposed treatment or medical procedure be formulated by the National Health and Medical Research Council (NH&MRC); and
• in an action for professional negligence, the guidelines should be admissible in evidence and the courts should consider them in deciding whether a medical practitioner has acted reasonably in relation to the provision of information.

• the type of information that should be given to patients;
• the particular need to give information about potential risks, as well as benefits, of a proposed medical intervention;
• the manner in which information should be given; and
• the circumstances where withholding information may be justified.

8.13 The New South Wales Medical Board’s guidelines on medical practitioners’ duties recognise, to a limited extent, such situations by requiring that full information about the condition, treatment and prognosis of a patient be provided to those with parental responsibility where patients lack the maturity to understand what their condition or its treatment may involve, if this is in the young person’s best interests.¹⁹

Issue 8.1

Should specific guidelines be developed to assist medical practitioners in discharging their duty to inform under-age patients about the material risks involved in a proposed medical treatment?

Issue 8.2

Do the duties to obtain a patient’s consent and to warn the patient of material risks of a proposed treatment create confusion in practice about what is required of medical practitioners when dealing with under-age patients?

8.15 In Chapter 2, the Commission outlined the aim and effect of s 49 of the Minors (Contract and Property) Act 1970 (NSW).²⁰ As we noted in that chapter, s 49 provides some protection for medical practitioners from liability for battery or assault when treating young people if they first obtain the consent of the young person’s parent or guardian, where the young person is aged below 16, or from the young person himself or herself, where the young person is aged 14 or above. As we also noted, it does not protect medical practitioners from liability for false imprisonment.²¹ An issue that needs to be addressed is whether or not medical practitioners should be protected more generally from civil liability if they obtained a legally effective consent to a treatment they performed.²²

8.16 The law gives protection to medical practitioners from liability for treatments without consent in various emergency situations. For example, s 55 to 58 of the Civil Liability Act 2002 (NSW) protects “good samaritans” (which may include medical practitioners) from any kind of personal civil liability for any act or omission in an emergency when assisting an apparently injured person or a person at risk of being injured.²³ The various laws on emergency treatment and the issues arising from them are discussed in Chapter 5.

CRIMINAL LIABILITY

8.17 The provision of medical treatment without consent may also attract criminal liability. In particular, a medical practitioner may be prosecuted for assault where the medical practitioner touches or physically examines the patient without the latter’s consent. The medical practitioner may be liable for aggravated assault, such as assault occasioning bodily harm under s 59 of the Crimes Act 1900 (NSW), where the medical treatment results in any physical or psychiatric hurt or injury.²⁴ In addition, a medical practitioner could be liable for the common law offence of false imprisonment, if it can be proved that in treating the patient without consent, the medical practitioner unlawfully restrained the patient’s liberty or freedom of movement.

8.18 Section 49 of the Minors (Contract and Property) Act 1970 (NSW) gives protection from “a claim for …assault and battery”. These words imply that the protection is limited to civil liability and only for those two types of torts.²⁵ This is in contrast to the parallel legislation operating in the United Kingdom, which gives medical practitioners protection from civil, as well as criminal, liability for acts that would otherwise constitute a trespass to the person.²⁶ It may be argued that in New South Wales the threat of criminal liability may deter medical practitioners from treating young people, given the ambiguities and uncertainties that surround the current law governing a young person’s competence to consent to medical treatment. In Chapter 2, the Commission raised the issue of whether or not a medical practitioner should be given protection from criminal liability for acts that would otherwise constitute assault, battery or false imprisonment but for the presence of legally effective consent to the treatment.²⁷

DISCIPLINARY ACTION

8.19 The Medical Practice Act 1992 (NSW) and the Health Care Complaints Act 1994 (NSW) establish a system that enables people to make complaints about medical practitioners and other health care practitioners. Complaints can be based on:

• a criminal conviction;
• unsatisfactory professional conduct;
• professional misconduct;
• lack of competence;
• impairment; and
• lack of good character.²⁸

• any conduct that demonstrates a lack of adequate knowledge, skill, judgement or care, by the practitioner in the practice of medicine;
• contravention of the Medical Practice Act 1992 (NSW) or its Regulations;
• contravention of registration conditions;
• criminal conviction relating to restrictions on the performance of “special medical treatment” under the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Mental Health Act 1990 (NSW) and the Guardianship Act 1987 (NSW);
• conviction for Medicare fraud under the Health Insurance Act 1973 (Cth);
• conviction for offences relating to disclosure of pecuniary interests to patients under the Private Hospitals and Day Procedure Centres Act 1988 (NSW) or the Nursing Homes Act 1988 (NSW);
• accepting a benefit for a referral or recommendation to a health service provider, offering a benefit for a referral or recommendation, failure to disclose a pecuniary interest in giving a referral or recommendation;
• engaging in over-servicing, that is, the provision of service which is unnecessary, not reasonably required or excessive;
• permitting unqualified assistants to attend on patients where professional discretion or skill is required;
• knowingly allowing unregistered persons to perform surgery or to issue certificates or otherwise engage in professional practice, except in connection with proper training of students, the lawful employment of nurses etc, or the conduct of research work;
• failure to attend in an emergency when requested to do so unless reasonable steps have been taken to ensure that another practitioner will attend; and
• any other improper or unethical conduct relating to the practice of medicine.²⁹

8.22 Section 37 of the Medical Practice Act 1992 (NSW) defines professional misconduct as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register.³¹ Prior to this legislative definition, case law construed professional misconduct as conduct in such breach of standards accepted by the medical profession in this State as would reasonably incur the strong reprobation of fellow practitioners of good repute and competence.³² Some NSW Medical Tribunal decisions continue to find this common law test useful when applying the provisions of s 37.³³

8.23 The law makes it clear that a medical practitioner convicted of an offence involving the performance of “special medical treatment” on a young person³⁴ without the consent required by the relevant legislation³⁵ may be the subject of a disciplinary complaint for at least unsatisfactory professional conduct.

8.24 On the other hand, the law does not expressly make the provision of medical treatment that is not “special medical treatment” without consent a ground for disciplinary complaint against the medical practitioner. However, it is possible that a medical practitioner, who provides medical treatment without a valid consent, where this is required, may face a claim of unsatisfactory professional conduct on one of two grounds. First, it may be argued that a medical practitioner in such situation demonstrated a lack of adequate judgment or care in the practice of medicine. In addition or alternatively, it may be argued that the medical practitioner committed improper or unethical conduct relating to the practice of medicine. For example, the Australian Medical Association Code of Ethics sets out, as one of its principles, that a medical practitioner must respect a patient’s right to accept or reject advice, and to make his or her own decisions about treatment or procedures.³⁶ It could be argued that a medical practitioner who has not obtained a patient’s consent has not observed this principle, and has engaged in unethical conduct, giving rise to a claim of unsatisfactory professional conduct or, if sufficiently serious, of professional misconduct.

Issue 8.3

Should legislation expressly provide that, where consent is a legal prerequisite for the provision of medical treatment, failure by a medical practitioner to obtain a valid consent is a ground for disciplinary action?

8.25 Should the law make some provision to exonerate medical practitioners from liability where they make honest and reasonable mistakes about the legal validity of the consent that they have obtained before treating a young person? In Chapter 3, the Commission canvassed various models for a legal framework to decide when young people should be able to consent to or refuse medical treatment. Several of these models, or variations of these models, included one or both of the following two features:

• an assessment of the young person’s maturity, that is, whether or not the young person has the ability to understand the nature and possible consequences of the proposed treatment;
• an assessment of whether or not the medical treatment is in the young person’s best interest.

8.27 A test for competence that requires a medical practitioner to assess a young person’s capacity to understand the nature of the treatment proposed carries the risk that the medical practitioner may make a mistake in his or her assessment. If the medical practitioner makes such a mistake, the consent may subsequently be found to be legally ineffective, and the medical practitioner may, at least in theory, face liability in tort, whether or not he or she acted in good faith in the circumstances, including for example, taking reasonable steps to inquire into the young person’s maturity. Unless medical practitioners are given protection from civil, criminal or disciplinary action in this context, medical practitioners might avoid the problem by refusing to treat young people.

8.28 The same problem may arise where medical practitioners are required to assess whether or not medical treatment is in a young person’s best interests. If the law were to require that young people be competent to consent to medical treatment that is only in their best interests, a medical practitioner may face liability for acting on a young person’s consent that is later found not to be legally effective, because the medical treatment is found, in hindsight, not to serve the young person’s best interests.

8.29 As in other contexts where mistake is a defence,⁴⁰ reasonable belief will need to be determined by reference to what the defendant (the medical practitioner) might reasonably have thought in all the circumstances he or she faced, not to what a reasonable person would have believed.⁴¹ However, it is an essential requirement that it be shown that there existed reasonable grounds for the mistaken belief in facts which if true would have made the act lawful.⁴²

Issue 8.4

(a) Should the law exonerate a medical practitioner from liability and/or disciplinary action for making an honest and reasonable mistake about a young patient’s competence to consent to medical treatment?

(b) Should the law exonerate a medical practitioner from liability and/or disciplinary action for making an honest and reasonable mistake about whether or not medical treatment is in the best interests of a young person?

8.30 Special mention should be made about the possible grounds of liability that arise from situations in which a medical practitioner treats a patient without the requisite consent where the medical treatment does not involve any physical contact, or the prospect of any physical contact. Examples of this type of situation include a psychiatrist who provides counselling to a patient, without any physical contact, or a medical practitioner who provides medical advice or information without any actual or threatened physical contact with the patient.

8.31 The usual grounds of liability that arise from the provision of medical treatment without consent, namely battery and assault, do not apply to these situations, because there is no actual or threatened physical contact with the patient. Does the provision of medical treatment without the requisite consent, where the medical treatment does not involve physical contact, attract any form of legal liability? Should it attract liability? To answer the first question, there does not seem to be any clear and certain basis on which to impose liability on a medical practitioner who treats a patient without the required consent in this type of situation. It is possible that, in more extreme cases, a patient could make a claim of false imprisonment against the medical practitioner, although in most situations it would be difficult to establish such a claim, given that an action for false imprisonment requires proof of total restraint of the patient, with no alternative means of exit available. A patient may be able to claim false imprisonment where, for example, he or she was subjected to some therapy,⁴³ without the medical practitioner first obtaining a legally valid consent, but it would be more difficult to establish false imprisonment where the patient was merely receiving psychiatric counselling or medical advice.

8.32 In the Gillick case, a mother of five teenage girls brought an action for a declaration that a Department of Health memorandum allowing medical practitioners to provide contraceptive advice and treatment to underage patients was unlawful. It was not a criminal case: it was not contended that the issue of the guidance was itself a crime or that a medical practitioner had in fact committed an offence. Instead, the case against the Department was simply that the guidance, if followed by medical practitioners, would result in the offence of causing or encouraging unlawful sexual intercourse with a girl below the age of consent, or as an accessory to the crime of unlawful sexual intercourse with an underage girl.⁴⁴ The court rejected this argument, noting that a medical practitioner who provides contraceptive advice is not encouraging or aiding or abetting the commission of unlawful sexual intercourse, but instead providing protection for the girl against disease and unwanted pregnancy, in recognition that sexual intercourse was likely to take place.⁴⁵ It was further observed that if it were criminal or contrary to public policy to prescribe contraception to a girl under the age of 16 on the ground that sexual intercourse with her is a crime on the part of her male partner, the fact that her parent knew and consented would not make it less so.⁴⁶

8.33 It is possible that a medical practitioner who treats a patient without the requisite consent, where the treatment does not involve any physical contact, could be found liable for breach of his or her fiduciary duty to the patient. A person owes a fiduciary duty to another person if he or she stands in a position of trust with respect to that person, and has an obligation to act in that person’s interests.⁴⁷ The Canadian Supreme Court has recognised the doctor-patient relationship as giving rise to a fiduciary duty,⁴⁸ although the Australian High Court has found that the doctor-patient relationship is not necessarily a fiduciary one.⁴⁹

8.34 Of course, medical practitioners who provide medical treatment to patients where the treatment does not involve physical contact may still face liability for negligence, or disciplinary action, if, for example, they have acted in an unprofessional or unethical manner. These do not depend on proof of a failure to obtain a valid consent.

8.35 As to the second question raised in paragraph 8.31, should a medical practitioner be liable for treating a patient below the age of 18 without consent where the treatment did not involve any actual or threatened physical contact with the patient? On the one hand, it might be argued that this kind of treatment does not involve the same level of intrusion and compromise of a person’s bodily integrity as arises from treatment involving physical contact. On the other hand, some treatments that do not involve physical contact, for example medical advice on reproduction and sexual health, and psychiatric counselling, can have significant and long-term effects on a patient’s health and well-being.

Issue 8.5

(a) Is the current law adequate in imposing liability on medical practitioners for treating young people without a valid consent (where consent is legally required), where the medical treatment in question does not involve any physical contact?

(b) Should the law impose liability on medical practitioners for treating young people without the requisite consent, where the medical treatment in question does not involve any physical contact?

8.36 The main outcome of a successful case in tort against a medical practitioner is payment of damages. Pursuant to a standard medical indemnity insurance policy, indemnity is provided to the insured medical practitioner for civil liability in respect of claims that arise directly from the insured’s provision of medical services. In other words, indemnity would be available to a medical practitioner who loses an action in assault, battery or negligence, provided the circumstances surrounding the wrong arose directly in connection with the insured’s provision of medical services.⁵⁰ The insurance policy may, however, limit the type of damages that it will indemnify: for example, claims arising out of exemplary or aggravated damages are usually excluded.⁵¹

Will indemnity be barred if the medical practitioner’s conduct constitutes a crime?

8.37 A possible bar to protection from insurance may arise if the medical practitioner’s conduct that forms the basis of the claim for indemnity is alleged to be criminal. United Medical Protection (UMP), the largest mutual medical indemnity provider in Australia, does not cover indemnity for any civil liability arising from allegations concerning criminal acts.⁵² Even if the insurance policy does not expressly exclude such claims, the insurer might seek to deny liability on the basis of public policy considerations.

8.38 There are cases that have held that public policy bars the insured from obtaining or enforcing any rights resulting from his or her crime.⁵³ However, this doctrine is not absolute. A claim in tort will not necessarily be defeated merely because the loss was caused by conduct amounting to a crime.⁵⁴ If the act of the party seeking indemnity was unlawful but was done in honest ignorance of the circumstances that constituted its unlawfulness, the action for indemnity may be maintained.⁵⁵ Moreover, the nature of the alleged offence is an important consideration. A criminal act can vary in its seriousness, and the test to be applied is whether the act is of such an anti-social character that the interests of the public require that the courts should for their protection decline to enforce arrangements connected with the act.⁵⁶ Similarly, it has been stated that public policy implies some form of moral blameworthiness such that it would shock the conscience to allow a person to benefit from his or her own misdeed.⁵⁷ Consequently, a mere allegation that a medical practitioner’s conduct was criminal in nature should not defeat a claim for indemnity arising from such conduct. The claim may be denied only if the medical practitioner’s conduct is intentional and is a crime that shocks the conscience of reasonable members of the community.

The medical indemnity crisis

8.39 One of the most pressing problems facing medical practitioners these days is the high cost of insurance. There have been reports of medical practitioners who have stopped practising because they could no longer afford indemnity cover. The increase in the number of medical malpractice cases and the escalation in the amount of damages being awarded are among the alleged causes of the problem. Others include the failure of medical defence organisations (MDOs), which provide professional insurance for medical practitioners, to provide adequately for future claims and financial pressures in the wider insurance industry.⁵⁸

8.40 The Commonwealth and New South Wales governments have taken steps to deal with the problem. For example, the federal government enacted legislation giving financial support to UMP and other MDOs.⁵⁹ New South Wales has undertaken tort law reform.⁶⁰ Further reforms are expected.⁶¹

8.41 This reference is not a review of medical indemnity and will therefore not directly deal with issues on that matter. Nevertheless, to the extent that one of its aims is to achieve clarity and consistency in the discrete area of young people’s consent to medical treatment, this review may contribute to the prevention of unnecessary claims against medical practitioners and consequently avert further pressures relating to medical indemnity.

1. For situations in which the law does not require a consent for medical treatment of a young person, see Chapter 5.

2. The least amount of touching may constitute battery: Campbell v Samuels (1980) 23 SASR 389 at 393 (Zelling J).

3. Boughey v The Queen (1986) 161 CLR 10.

4. See Re F [1990] 2 AC 1 at 73B (Lord Goff). See also T v T [1988] 2 WLR 189 at 203 where Wood J said: “The incision made by a surgeon’s scalpel need not be and probably is most unlikely to be hostile, but unless a defence or justification is established it must in my judgment fall within the definition of a trespass to the person.”

5. It is sufficient that the belief was reasonable under the circumstances: see Brady v Schatzel; Ex parte Brady [1911] St R Qd 206; McClelland v Symons [1951] VLR 157 at 163-164 (Sholl J).

6. The threat must be that, while it continues to operate on the plaintiff’s mind, there is a reasonable belief that violence will be done immediately or imminently: Zanker v Vatzokas (1988) 34 A Crim R 11; Knight (1988) 35 A Crim R 314 at 317-318 (Lee J). See also R v Ireland [1998] AC 147 at 162 (Steyn LJ), at 166 (Hope LJ).

7. Bridgett v Coyney (1827) 1 Man & Ry KB 211 at 215-216 (Tenterden CJ).

8. Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44; Murray v Ministry of Defence [1988] 2 All ER 521. However, this factor is relevant to the measure of damages: Myer Store v Soo [1991] 2 VR 597.

9. The only relevant intention is the intention to detain the plaintiff: Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714.

10. [1984] Australian Torts Report ¶80-201; [1996] Australian Torts Report ¶81-395 (appeal on the amount of damages dismissed). On the background to this case, see B Bromberger and J Fife-Yeomans, Deep sleep: Harry Bailey and the scandal of Chelmsford (Simon & Schuster Australia, East Roseville NSW, 1991).

11. Christopherson v Bare (1848) 11 QB 473; Latter v Braddell (1848) 44 LT 369.

12. Rogers and Whitaker (1992) 175 CLR 479 at 490 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ); Chatterton v Gerson [1981] 1 All ER 257 at 265 (Bristow J).

13. See para 8.9.

14. Rogers and Whitaker (1992) 175 CLR 479 at 490 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).

15. To establish this duty, the plaintiff will need to prove foreseeability of the harm and proximity between the plaintiff and the defendant. In addition, the plaintiff needs to prove that the defendant breached the duty by failing to exercise the necessary level of care, and that the plaintiff suffered damage which is not too remote. The existence of a duty of care has long been presumed to exist in the doctor-patient relationship. For a discussion of the elements of medical negligence, see L Skene, Law and medical practice: rights, duties, claims and defences (2^nd edition, LexisNexis Butterworths, Sydney, 2004), Chapter 7; Halsbury’s laws of Australia (Butterworths, Sydney, 1993) Volume 18 at [280-2000], [280-2005], [280-2025].

16. For a distinction between an action for trespass to person and negligence in the context of consent to medical treatment, see Reibl v Hughes (1980) 114 DLR (3d) 1; Chatterton v Gerson [1981] 1 All ER 257.

17. Rogers and Whitaker (1992) 175 CLR 479 at 490 (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ).

18. NSW Law Reform Commission, Informed Decisions About Medical Procedures (Report 62, 1989); Australian Reform Commission, Informed Decisions About Medical Procedures (Report 50, 1989); Law Reform Commission of Victoria, Informed Decisions About Medical Procedures (Report 24, 1989).

19. The New South Wales Medical Board, The duties of a doctor registered with the New South Wales Medical Board at para 2.3.

20. See para 2.15 – 2.31.

21. See para 2.17.

22. See Issue 2.1.

23. Civil Liability Act 2002 (NSW) s 57.

24. The phrase “bodily harm” is capable of including psychiatric injury but does not include emotions such as fear or panic nor states of mind that were not themselves evidence of some identifiable clinical condition: R v Chan-Fook [1994] 1 WLR 691 at 696; R v Lardner (NSW, Court of Appeal, No 9804715, 10 September 1998, unreported).

25. See para 2.17.

26. See Family Law Reform Act 1969 (UK) s 8. See In re W (A Minor) [1993] Fam 64 at 76 (Lord Donaldson MR).

27. See Issue 2.1.

28. Medical Practice Act 1992 (NSW) s 39.

29. Medical Practice Act 1992 (NSW) s 36.

30. See Part 4 Division 4 of the Medical Practice Act 1992 (NSW) for the disciplinary powers of the Medical Tribunal and Professional Standards Committees.

31. Medical Practice Act 1992 (NSW) s 37.

32. Qidwai v Brown (1984) 1 NSWLR 100. See also Pillai v Messiter [No. 2] (1989) 16 NSWLR 197 at 200 where Kirby P construed professional misconduct as the “[d]eparture from elementary and generally accepted standards of which a medical practitioner could scarcely be heard to say that he or she was ignorant…But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which accompany registration as a medical practitioner.”

33. See Re Dr Gad (NSW Medical Tribunal, No 40035/99, 21 September 2001, unreported).

34. For a discussion on the meaning of special medical treatment and the restrictions on such treatments, see para 4.19-4.23, 5.20-5.30.

35. Children and Young Persons (Care and Protection) Act 1998 (NSW) s 175, Mental Health Act 1990 (NSW) s 35, Guardianship Act 1987 (NSW) s 35-39.

36. Australian Medical Association, Code of ethics 2003 at para 1.1(k).

37. See para 3.10-3.21.

38. See para 3.24-3.26.

39. See para 3.18.

40. In criminal law, an honest and reasonable belief in a state of facts, which had they existed would make the accused’s act innocent, is a common law defence: Proudman v Dayman (1941) 67 CLR 536.

41. Viro v The Queen (1978) 141 CLR 88 at 146-147 (Mason J).

42. Handmer v Taylor [1971] VR 308.

43. See para 8.6.

44. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

45. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 174-175 (Lord Fraser of Tullybelton), 190-191 (Lord Scarman) 194 (Lord Bridge of Harwich).

46. Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 at 190 (Lord Scarman).

47. See for example Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 at 96-97; See also B Bennet, Law and medicine (Law Book Company, North Ryde, 1997) at para 4.28-4.33.

48. See McInerney v MacDonald (1992) 93 DLR (4th) 415; Norberg v Wynrib (1993) 92 DLR (4th) 449.

49. Breen v Williams (1996) 186 CLR 71. This case involved the question of a patient’s access to medical records, and the Court found that there was no fiduciary relationship that gave rise to a duty to provide access to such records.

50. Information provided by A Took, In-House Counsel, United Medical Protection (6 November 2003).

51. See for example Australasian Medical Insurance Limited, Professional indemnity insurance policy at para 3.23

52. Information provided by A Took, In-House Counsel, United Medical Protection (6 November 2003). However, UMP has a policy that provides for the meeting of legal costs of criminal proceedings, which arise from the insured’s practice of medicine.

53. Haseldine v Hosken [1933] 1 KB 822; Beresford v Royal Insurance Co Ltd [1938] AC 586; Geismar v Sun Alliance and London Insurance Ltd [1978] 2 QB 383.

54. Jackson v Harrison (1978) 138 CLR 438.

55. Burrows v Rhodes [1899] 1 QB 816; Geismar v Sun Alliance and London Insurance Ltd [1978] 2 QB 383.

56. See Fire and All Risks Insurance Co Ltd v Powell (1966) VR 513 at 523 (O’Bryan and Pape JJ).

57. S & Y Investments (No 2) Pty Ltd (in liquidation) v Commercial Union Assurance Co of Australia Ltd (1986) 44 NTR 14.

58. For an account and analysis of the medical insurance problem, see L Skene, Law and medical practice: rights, duties, claims and defences (2^nd edition, LexisNexis Butterworths, Sydney, 2004), Chapter 1; Medical Indemnity Review Panel, Affordable, secure and fair (Report to the Prime Minister of the Medical Indemnity Review Panel, 2003); H Luntz, “Medical indemnity and tort law reform: the medical indemnity crisis” (2003) 10 Journal of Law and Medicine 385; P Cashman, “Tort reform and the medical indemnity ‘crisis’” (2002) 8 University of New South Wales Law Journal Forum 51.

59. Medical Indemnity Agreement (Financial Assistance-Binding Commonwealth Obligations) Act 2002 (Cth); Medical Indemnity (IBNR) Contribution Act 2002 (Cth); Medical Indemnity (Consequential Amendments) Act 2002 (Cth); Medical Indemnity (Enhanced UMP Indemnity) Contribution Act 2002 (Cth).

60. See, for example, the Civil Liability Act 2002 (NSW).

61. The Commonwealth Government has recently announced that it is adopting the Report of the Medical Indemnity Review Panel.