Significant changes around privacy, consent and surgical regulation will be introduced over the coming months.

MIGA has been advocating for the interests of its members and clients around these issues for some time, and we are seeing positive outcomes of this work.

National – mandatory data breach notification scheme
From 22 February 2018, under the new Notifiable Data Breaches scheme private health care providers will need to inform patients and the Office of the Australian Information Commissioner (OAIC) about any ‘eligible data breaches’.  These breaches occur where there is unauthorised access to, or unauthorised disclosure of health or other personal information, or loss of such information likely to result in unauthorised access or disclosure, if these events are likely to result in ‘serious harm’ to the affected individual (usually a patient) which cannot be avoided through remedial action.  There is a separate scheme for certain breaches involving My Health Record, and those breaches are not reportable under the Notifiable Data Breaches scheme.

MIGA opposed an earlier suggestion that all ‘data breaches’ involving health care be notifiable, and was involved in developing the OAIC’s guidance on the new regime.

MIGA has a video and risk resource  to assist our members and clients in understanding these new obligations.

Our materials cover a range of issues including:

  • circumstances which may involve an eligible data breach;
  • what to do when you think there may have been a data breach; and
  • how to reduce the risk of a breach.

The OAIC also provides guidance on the Notifiable Data Breach Scheme.

Victoria – treatment consent

From 12 March 2018, Victoria will have a new regime for treatment consent where patients cannot give consent.

MIGA was involved in consultation around the new regime, advocating for:

  • greater clarity around the use of advance care directives (ACDs) and roles of substitute decision-makers (i.e. family members) when a patient lacks capacity; and
  • fair and practical obligations and protections for practitioners around consent to treatment and conscientious objection.

The new regime – the Medical Treatment Planning and Decisions Act 2016 (VIC) – includes:

  • presumption of patient capacity, and clarity on what constitutes capacity;
  • wider scope for using ACDs, including for future medical conditions and treatments, inclusion of preferences and values to guide substitute decision-makers and recognition of ACDs validly made elsewhere in Australia;
  • scope for a patient to appoint a medical treatment decision-maker for when they lack capacity, and to appoint support persons to assist them in making decisions;
  • except in emergencies, obligations to make reasonable efforts to locate an ACD or an appointed decision-maker when a patient lacks capacity;
  • good faith protections for practitioners where there is no negligence and reasonable steps were taken to obtain consent to treatment; and
  • clarification that practitioners cannot be compelled to provide particular treatment.

The Victorian Government has provided further guidance around the new regime.

South Australia, Queensland and Victoria – surgical regulation changes

From 1 January 2018 in Queensland, 1 May 2018 in South Australia and 1 July 2018 in Victoria, there are significant changes around procedures which must be performed in registered or licensed facilities following similar changes for cosmetic surgery last year in New South Wales. This will effectively increase the numbers of surgeries which now need to be performed in these facilities.

The changes mean the following procedures will need to be performed in registered or licensed facilities:

  • Queensland – specific cosmetic surgical procedures;
  • South Australia – procedures using:
  • general, spinal, epidural or major regional block anaesthetic;
  • local anaesthetic – the new regime only allows GPs and dentists to perform procedures using local anaesthetic in their rooms – MIGA understands it is likely specialists will be permitted to perform procedures within their usual scope of practice using local anaesthetic in their rooms; and
  • IV sedation, other than conscious sedation.

In Victoria, a broad framework has been set and the Victorian Government is now consulting on how those changes will look in practice. MIGA has been involved in both this process and earlier consultations on these issues, advocating for greater national consistency and practicality in surgical regulation.

If you have any questions about what these new changes mean for your practice, contact MIGA’s Claims Solicitors.

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