Legal review of response to COVID-19

Kennedys international health team have reviewed the operational and digital response to COVID-19 across the globe. In Australia, the onset of COVID-19 intensified pressure on the healthcare system, and accordingly the Federal and State Governments implemented policies including:

  • Lower priority services, such as elective surgery, were put on hold whilst attention was provided to the management and treatment of COVID-19.
  • Increasing the supply of a suitably qualified workforce was critical to being able to meet healthcare demands. Practitioners and healthcare staff were redeployed from private settings to the public health system to support COVID-19 efforts. The Australian Health Practitioner Regulation Agency (AHPRA) established a pandemic response sub-register to fast-track the return of retired practitioners to the workforce.
  • One of the most significant operational changes to healthcare has been the significant update in telehealth consultations. Telehealth services has continued to grow and expand since its introduction in March 2020, to include general practitioners, specialists, nurse practitioners, midwives, psychologists and other allied health services.

It is premature to predict the impact of COVID-19 on the Australian medical malpractice claims landscape but we consider there is likely to be an increase in claims regarding delays or misdiagnosis. Historically our industry has seen an increase in claims during periods of economic downturn and all medical defence organisations have reported increased claims numbers in the last 12 months.

With patients opting for telehealth consultations and not presenting for face-to-face consultations, there has been a reduction in routine health screens, including breast cancer screening, pap smears, and cardiac monitoring. As we have not previously faced the same or similar circumstances presented by the pandemic, the law in Australia will ultimately be evolving.

Key developments in 2021/areas of emerging risk

Our anecdotal experience of an increase in regulatory complaints has been supported by AHPRA[1] which has reported that there was a 7.2% increase in the number of notifications made against medical practitioners to AHPRA in the last year (5,745 versus 5,359). The most common types of notifications were complaints about clinical care which accounted for 54.2%. Medication and communication were the next most common types of complaints. Complaints in relation to the provision of mental health consultations by telehealth (including privacy breach claims) and the lack of available resourcing during the pandemic has featured in notifications. Complaints relating to professional boundary transgressions/breaches by medical practitioners are increasingly being tested in AHPRA before progressing to civil proceedings and are an area of growth in claims.

AHPRA has provided recent guidance on the circumstances that enliven the obligation to notify the Medical Board under s.130 of the National Law. One of these obligations is entering a section 92 agreement (pursuant to the Health Insurance Act 1973 (Cth)) following a review by the Director of Professional Services which includes a disqualification from rendering or initiating specified services under the Medicare Benefits Schedule or the Pharmaceutical Benefit Scheme. It is important that practitioners who are considering a s.92 agreement are reminded of this obligation to avoid the risk of further disciplinary action by breaching the notification deadline (7 days).

This article was originally published in VicDoc March 2021, VicDoc is the magazine of the Australian Medical Association Victoria.


[1] AHPRA Annual Report 2019/2020