Health Bulletin 30 October 2019

In this edition: High Court ruling on female genital mutilation, hospital and aged care audit, medevac legislation, consultation on new AHRPA guidelines, compassionate access to medicinal cannabis, AMA "10 Minimum Standards for Prescribing", and Telehealth ban restricts rural access to VAD.

The latest insights from our Health Law team:

High Court rules on female genital mutilation

Have your say: tackling cancer and hospital and aged care food

Medevac legislation: update

Consultation on new AHPRA guidelines for mandatory notifications

Giving more kids access to medicinal cannabis

AMA "10 Minimum Standards for Prescribing"

Telehealth ban restricts rural access to VAD

Learn more about Russell Kennedy's expertise in the Health sector here.

If you'd like to stay up to date with Russell Kennedy's insights, please sign up here.


High Court rules on female genital mutilation

The High Court has confirmed in a recent case that section 45 of the Crimes Act 1900 (NSW) (Crimes Act) relating to female genital mutilation is to be interpreted within its specific context. This means that the terms “otherwise mutilates” and “clitoris” as used in the section are to be construed broadly, so that narrow definitions cannot be used to avoid being convicted of this offence.

On 16 October 2019, the High Court of Australia (High Court) found that the NSW Court of Criminal Appeal (CCA) had erred in its conclusion that the word ‘mutilates’ should be given its ordinary meaning. The High Court found that it should be interpreted with specific reference to the intention of the section, and is broader than the ordinary meaning. The majority held that it includes ‘cutting’ or ‘nicking’ of the clitoris, even if not causing the damage contemplated by the ordinary meaning of the word mutilate. This was consistent with the intention of section 45.

In addition, the High Court found that ‘clitoris’ should be interpreted broadly and includes the clitoral hood and prepuce. This ruling arose from a case in NSW where two men were convicted under section 45(1)(a) of the Crimes Act for mutilating the clitorises of two complainants. A third man was charged with assisting the commission of the crime. The trial judge directed the jury that the terms should be interpreted broadly. The three men appealed their convictions to the CCA, in part claiming the error of the trial judge in that direction.

The matter has been referred back to the CCA for determination on a separate ground of appeal.

The full case is available here, however the High Court’s summary is also available online.


Have your say: tackling cancer and hospital and aged care food

The Victorian Government is seeking views and ideas on two key issues:

  1. The standard of meals in Victorian public hospitals and aged care facilities; and
  2. The Victorian cancer plan 2020-2024.

Standard of food in public hospitals and aged care facilities

Victorians can participate in the Victorian Government’s food audit as part of its Engage Victoria community survey. The audit is focused on:

  1. The nutritional value of menus in public hospitals and aged care facilities;
  2. The capability of public hospitals and aged care facilities to cater to diverse diets;
  3. How more menus can be sourced from local Victorian farmers and producers; an
  4. How menus can reduce high fat and high salt foods from all outlets, be it bedside, at the cafeteria or vending machines.

Feedback from the audit will lead to revised nutritional standards and guidelines that must be followed by all public hospitals and aged care facilities.

Victorians can participate in the food audit here until 25 November 2019.

Cancer plan 2020-2024

The cancer plan will “build on the existing Victorian cancer plan 2016-2020 to prevent cancer, increase survival, improve the experience of the cancer treatment and care system, and ensure all Victorians have the best possible chance to thrive.”

Victorians can make a written submission here until 4 November 2019.


Medevac legislation: update

In the face of a potential repeal of Medevac legislation through the Migration Amendment (Repairing Medical Transfers) Bill 2019, eleven of Australia’s peak medical bodies have united to call for the Medevac legislation and Independent Health Advice Panel to be maintained by the federal parliament.

The Royal Australasian College of Physicians says that the legislation has “improved access to appropriate healthcare for refugees and asylum seekers” and ensures critically ill people “receive the medical treatment that they need in a clinically appropriate timeframe”.

The Australian Medical Association has also continuously advocated for refugees and asylum seekers receiving quality health care and supports the stance taken by the medical colleges.

Of the 104 public submissions received by the Senate Committee, only two — made by the Department of Home Affairs and International Health and Medical Service, a government-contracted health provider on Nauru — supported the repeal.


Consultation on new AHPRA guidelines for mandatory notifications 

The Australian Health Practitioner Regulation Authority (AHPRA) and the National Boards are engaging in public consultation on new proposed Guidelines for mandatory notifications. The guidelines explain the requirements for treating and non-treating registered health practitioners, employers of health practitioners and education providers to make a mandatory notification under the National Law.

The new Guidelines have been developed to ensure they clearly explain the thresholds for making a mandatory notification, particularly in light of the 2019 amendments to the National Law which take effect on 8 March 2020. 

The changes, passed by Parliament earlier this year, are intended to support and encourage health practitioners to seek medical treatment without fear of a mandatory notification being made by their treating practitioner. The new law will expressly exclude health practitioners who are treating another health practitioner from making a mandatory report unless they are of the view that the public is at “substantial risk of harm”. 

The consultation is open until 6 November and you can read the proposed Guidelines and prepare a response here


Giving more kids access to medicinal cannabis

The Andrews Government has introduced a compassionate access scheme that will give more sick Victorian children access to medicinal cannabis.

On 13 October 2019, the Minister for Health Ms Jenny Mikakos announced that the compassionate access scheme would be extended from 60 places, to 90 available places for sick children.

The Minister for Health said:

“We’re expanding our compassionate access scheme so more kids can access a treatment that could change their lives when all other avenues are exhausted.”

The scheme uses Canadian Pharmaceutical grade Cannabidiol. Victoria and the Commonwealth have recently overturned bans on importing medicinal cannabis. As a result a number of global companies have established themselves in Victoria and the State’s medical cannabis industry is growing. This has assisted in establishing Victoria as the centre for research and development for medicinal cannabis.

The Victorian Government has manufactured 12 kilograms of purified crystallised Cannabidiol. To be used in health and medical research, with the aim of the Commonwealth including medicinal cannabis on the pharmaceutical benefits scheme.

The Department of Health and Human Services will soon open expressions of interest for medical researchers to apply to access the Victorian Government’s stock of Cannabidiol.

You can read the Victorian Government’s media release here.


AMA 10 "Minimum Standards for Prescribing"

The Australian Medical Association (AMA) has developed guidelines outlining “10 Minimum Standards for Prescribing” to address concerns about proposals for independent and autonomous pharmacist prescribing.

The AMA has stated that good patient care involves communication and collaboration between all the health practitioners (medical and non-medical) involved as part of the patient’s health care team. The guidelines have been developed by the AMA to set the minimum standards that must be required of all prescribers authorised to prescribe S4 and S8 medications.

The 10 Minimum Standards for Prescribing are principally concerned with health services, General Practitioners and other medical professionals and address emergency care, admitted care and non-admitted care episodes.

AMA has emphasised that the standards should apply to all authorised prescribers. Read the guidelines here.


Telehealth ban restricts rural access to VAD

An amendment to the commonwealth criminal code is likely to have the unforeseen effect of reducing access to voluntary assisted dying for patients in Victoria, the only state where it is currently legal.

A panel discussion at GP19 in Adelaide on the practicalities of VAD revealed some lesser-known facts, difficulties and unfounded worries around the provision, which has been in place since June and which is expected to be used by around 150 people a year.

Facilitated by journalist Jenny Brockie, the panel comprised Justice Betty King QC, former Victorian Supreme Court judge and a member of the VAD review board; Russell Kennedy Principal Michael Gorton AM; bioethicist Courtney Hempton; palliative care physician Liz Reymond; Dr Horst Herb, a rural locum GP with international experience; and Belinda Teh, a consumer representative from Perth whose mother died from metastatic breast cancer without access to assisted dying.

Read the full article, authored by Penny Durham, on Medical Republic.


Learn more about Russell Kennedy's expertise in the Health sector here.

If you'd like to stay up to date with Russell Kennedy's insights, please sign up here.

View related insights

doctor-working-at-the-medical-network-on-the-tablet 360 x 240

Health Bulletin 4 June 2021

4 Jun 2021

The latest insights from our Health Law team.


Health Bulletin 25 May 2021

25 May 2021

The latest insights from our Health Law team.

stethoscope-on-white-background 360 x 240

Can trainees’ personal reflections be used in Court? (Revisited)

17 May 2021

The 2019 case in the UK of Dr Bawa-Garba has raised concerns in Australia and New Zealand for young doctors and trainees.