tag:theconversation.com,2011:/us/topics/health-law-43601/articlesHealth law – The Conversation2024-03-07T13:36:07Ztag:theconversation.com,2011:article/2247212024-03-07T13:36:07Z2024-03-07T13:36:07ZWhat is a frozen embryo worth? Alabama’s IVF case reflects bigger questions over grieving and wrongful death laws<figure><img src="https://images.theconversation.com/files/579978/original/file-20240305-16-b0u7k5.jpg?ixlib=rb-1.1.0&rect=8%2C8%2C2986%2C1985&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">An embryologist uses a microscope to view an embryo, visible on a monitor.</span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AlabamaFrozenEmbryos/e6f3454e8ba144ccadc7e0a21532fb6c/photo?Query=alabama%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=508&currentItemNo=22">AP Photo/Richard Drew, File</a></span></figcaption></figure><p>In the weeks since the Alabama Supreme Court held that <a href="https://thehill.com/homenews/state-watch/4477607-alabama-supreme-court-rules-frozen-embryos-are-children/">embryos are “unborn children</a>” under one state law, most attention has been focused on in vitro fertilization – whether the decision imperils parents’ attempts to create a family. On March 6, 2024, Gov. Kay Ivey signed legislation to <a href="https://apnews.com/article/alabama-ivf-frozen-embryos-ruling-cab8171e80c88a088778dc7a187b7b5a">shield IVF providers from legal liability</a>, though the new law does not address frozen embryos’ legal status.</p>
<p>As <a href="https://health.usf.edu/publichealth/overviewcoph/faculty/katherine-drabiak">a health law professor</a>, I believe it’s also important to understand the laws that shaped the court’s decision: not only Alabama’s laws about “unborn children,” but wrongful death laws. This is a legal claim where family members can bring a civil lawsuit against a person who intentionally or carelessly caused the family member’s death, which is different from any criminal charges.</p>
<p>Over the past 100 years, laws have evolved to reflect a wider sense of what it means to lose a loved one, and how to “compensate” their family. Courts have been asked to interpret how wrongful death laws should apply to situations before a child is born.</p>
<h2>What happened in the clinic?</h2>
<p>The Alabama case, <a href="https://law.justia.com/cases/alabama/supreme-court/2024/sc-2022-0579.html">LePage v. Center for Reproductive Medicine</a>, was brought by three couples who had used IVF at a fertility clinic. They sued the clinic after a patient who wandered into the “cryogenic nursery,” where frozen embryos are stored, picked some up and accidentally dropped them on the floor, destroying them.</p>
<p>In the language of the court, this killed the embryos, since they might have developed into a healthy fetus if implanted in the uterus. </p>
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<a href="https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A steel vat, with icy condensation inside, open to reveal white packets inside at the bottom of the container." src="https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=510&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=510&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580020/original/file-20240305-18-hv069o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=510&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Containers holding frozen embryos and sperm are stored in liquid nitrogen at a fertility clinic in Fort Myers, Fla., in 2018.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AlabamaFrozenEmbryos/25b27e79f3e14fb6910ff3de3ebc7dae/photo?Query=alabama%20supreme%20court&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=508&currentItemNo=32">AP Photo/Lynne Sladky, File</a></span>
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<p>The three sets of parents filed a lawsuit based on a claim for <a href="https://www.law.cornell.edu/wex/wrongful_death">wrongful death</a>. Like <a href="https://www.bu.edu/bulawreview/files/2020/03/LENS.pdf">about 40 other states</a>, Alabama allows parents to bring a claim for <a href="https://law.justia.com/codes/alabama/2022/title-6/chapter-5/article-22/section-6-5-391/">wrongful death</a> of an unborn child.</p>
<p>The court said the question in this case centered around whether the term “unborn child” in state laws only refers to an embryo or fetus in utero, or whether there is an “unwritten exception” for embryos that have not yet been transferred to the womb.</p>
<h2>The court’s decision</h2>
<p>Alabama Supreme Court cases in 2011 and 2012 had already held that the state’s wrongful death law <a href="https://casetext.com/case/mack-v-carmack">allows expectant parents to bring a claim</a> following a death at <a href="https://casetext.com/case/hamilton-v-scott-2">any stage of the embryo’s or fetus’s development</a>.</p>
<p>In addition, Alabama <a href="https://ballotpedia.org/Alabama_Amendment_2,_State_Abortion_Policy_Amendment_(2018)">amended its state constitution</a> in 2018 to affirm that public policy of the state should protect “the rights of the unborn child.”</p>
<p><a href="https://law.justia.com/cases/alabama/supreme-court/2024/sc-2022-0579.html">Combining the previous cases</a>, the state constitution and even dictionary definitions, the court said nothing in the current wrongful death law would exempt “extrauterine children – that is, unborn children who are located outside of a biological uterus at the time they are killed.”</p>
<p>This ruling does not mean that the parents won a wrongful death lawsuit, but that a court will be able to hear the parents’ claim for wrongful death.</p>
<h2>The legal ‘value’ of an embryo</h2>
<p>This is significant because in <a href="https://doi.org/10.1016/j.xfre.2020.06.007">other cases</a> where embryos were destroyed, the law generally has treated embryos as <a href="https://www.nbcnews.com/health/health-news/university-hospitals-fertility-clinic-faces-new-lawsuits-after-tank-failures-n962341">parents’ property</a>, or allege negligence by the clinic. Only a <a href="https://doi.org/10.1016/j.fertnstert.2022.12.038">handful of other states</a> – including Illinois, Missouri and Georgia – allow wrongful death lawsuits for embryos.</p>
<p>IVF <a href="https://www.nytimes.com/article/ivf-treatment-costs-guide.html">is a significant investment</a> of time and money, and involves a variety of <a href="https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716">medical risks</a>. In a case where fertility treatment goes wrong, couples could try to recoup those costs through civil lawsuits that sometimes treat frozen embryos as property.</p>
<p>However, that does not account for each embryo’s biological and emotional uniqueness. Before the Alabama ruling, other cases had tried to classify embryos as <a href="https://www.courthousenews.com/would-be-parents-want-embryos-deemed-people-after-clinic-meltdown/">living people</a> to signify their <a href="https://abcnews.go.com/US/families-sue-cleveland-clinic-malfunction-possibly-destroyed-embryos/story?id=53683517">irreplaceable value</a>. </p>
<p>Some <a href="https://vanderbiltlawreview.org/lawreview/2022/11/abortion-pregnancy-loss-subjective-fetal-personhood/">legal experts</a> assert that embryos only have “subjective and relational value.” In other words, only parents can decide whether or not they are important and have meaning.</p>
<p>Other <a href="https://contemporarythinkers.org/robert-george/book/embryo-defense-human-life/">experts suggest</a> that embryos have inherent value because they are each genetically distinct, unique human life at the earliest stage. They argue that allowing protection for some stages of human development but not others violates human rights principles.</p>
<h2>How wrongful death laws work</h2>
<p>How the value of an embryo is defined also shapes whether wrongful death laws would apply.</p>
<p>Wrongful death laws were originally designed to compensate family members for the loss of that person’s <a href="https://heinonline.org/HOL/Page?handle=hein.journals/wsulr5&div=17&g_sent=1&casa_token=&collection=journals">services and contributions</a>. Damages from a lawsuit could pay medical bills, funeral expenses and lost earnings from that person’s job, for example.</p>
<p>Each state has its own wrongful death law. <a href="https://www.bu.edu/bulawreview/files/2020/03/LENS.pdf">Since the 1850s</a>, these laws have allowed parents to bring claims to recover damages from a person who causes their child’s death. Initially, these laws were designed as an economic tool because parents expected their children to work.</p>
<p>Now, according to some <a href="https://www.bu.edu/bulawreview/files/2020/03/LENS.pdf">legal scholars</a>, many states recognize that losing a child means much more: a moral injury, pain and <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1286251">the anguish</a> from losing the child’s company and affection. Some states allow the family to <a href="https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=57">recover damages for suffering and grief</a> – recognizing a person’s inherent value, not only their economic value.</p>
<p><a href="https://casetext.com/case/stinnett-v-kennedy-1">Awarding damages</a> to a grieving family is meant to deter risky actions that could result in loss of life.</p>
<p>By the mid-1900s, courts began to allow wrongful death claims for children that died before birth as a result of another person’s negligence or carelessness. Some states specify that <a href="https://nebraskalegislature.gov/laws/statutes.php?statute=30-809">this includes at any stage of gestation</a>. </p>
<p>Some laws, including in <a href="https://nebraskalegislature.gov/laws/statutes.php?statute=30-809">Nebraska</a> and <a href="https://statutes.capitol.texas.gov/Docs/CP/htm/CP.71.htm#:%7E:text=71.003.,inside%20or%20outside%20this%20state.">Texas</a>, prevent families from suing the pregnant woman, or from suing her medical provider, if she opts to have a medical procedure that results in unintended fetal loss. Others specify that the law <a href="https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=57#:%7E:text=Whenever%20the%20death%20of%20a,then%20and%20in%20every%20such">does not apply</a> in cases of abortion. </p>
<h2>What the case means moving forward</h2>
<p>Some policymakers have <a href="https://time.com/6835548/lawmakers-ivf-embryos-alabama-legislation/">expressed concern</a> that Alabama’s decision “criminalizes” parents from trying to grow their family, or that they would face <a href="https://www.cnn.com/2024/02/27/us/ivf-ruling-impact-other-states/index.html">prosecution</a>. However, this is not accurate, since this case only relates to civil lawsuits, not criminal law.</p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A woman in a long white sweater, holding a pink sign that says 'I just want to be a mom,' speaks with another blonde woman in a doctor's coat." src="https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/580222/original/file-20240306-28-lwkhnd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Patients and doctors gathered outside the Alabama Statehouse in Montgomery on Feb. 28, 2024, urging lawmakers to protect IVF services in the state.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/AlabamaIVFAffectedGroups/e3ec159eb74c437297b40e73d8835780/photo?Query=ivf&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=110&currentItemNo=4">Kim Chandler/AP</a></span>
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<p>Nor does the decision prohibit using IVF. The Alabama attorney general has stated that he <a href="https://www.cnn.com/2024/02/23/us/alabama-ivf-embryos-supreme-court-ruling-legislation/index.html">does not intend</a> to use this decision to prosecute either parents or IVF providers. However, several fertility clinics announced that they would <a href="https://www.nytimes.com/2024/02/23/us/politics/alabama-ivf-treatment-law.html">pause their IVF services</a> while assessing the law.</p>
<p>Based on the U.S. Constitution, courts can only <a href="https://www.ncsl.org/about-state-legislatures/separation-of-powers-legislative-judicial-relations">interpret what the law is</a>, not decide what they think it should be. </p>
<p>In response, state legislators rapidly proposed <a href="https://www.cnn.com/2024/02/27/us/ivf-ruling-impact-other-states/index.html">a variety of bills</a> aimed at preserving IVF. The bill signed into law on March 6, 2024 <a href="https://www.newsfromthestates.com/article/alabama-legislature-passes-bills-aimed-protecting-vitro-fertilization?emci=9460e6e7-4cd7-ee11-85f9-002248223794&emdi=a8a94336-c3d7-ee11-85f9-002248223794&ceid=519099">gives broad immunity</a> to IVF clinics, shielding providers from prosecution and lawsuits “for the damage to or death of an embryo.” However, it provides more protection than is standard, which may create unintended consequences – for example, potentially making it more difficult to sue for negligence or breach of contract.</p>
<p>As Alabama legislators discuss next steps, they need to incorporate the state constitution while considering how to reflect the will of their voters.</p><img src="https://counter.theconversation.com/content/224721/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Katherine Drabiak does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Alabama’s case began when three couples sued an IVF clinic where their frozen embryos had accidentally been dropped.Katherine Drabiak, Professor of Health Law, Public Health Law and Medical Ethics, University of South FloridaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2230822024-02-09T03:48:21Z2024-02-09T03:48:21ZChoosing a new doctor? Their sexual misconduct may soon be on the record<figure><img src="https://images.theconversation.com/files/574534/original/file-20240208-20-b3n5y5.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C998%2C666&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/focused-old-woman-home-using-laptop-1449002363">Ground Picture/Shutterstock</a></span></figcaption></figure><p>Over the past decade, reports of sexual misconduct by Australian health practitioners against patients have <a href="https://www.ahpra.gov.au/News/2023-07-07-blueprint-update.aspx">increased</a>. While <a href="https://www.nhpo.gov.au/sites/default/files/2020-08/Chaperone-review-report-WEB.pdf">various reforms</a> have tried to curtail “sexual boundary violations”, none has worked.</p>
<p>Now, Australian health ministers <a href="https://www.abc.net.au/news/2024-02-08/reform-could-be-coming-to-let-patients-know-of-doctor-misconduct/103432744">have agreed</a> to consider <a href="https://engage.vic.gov.au/proposed-reforms-to-the-health-practitioner-regulation-national-law">three amendments</a> intended to protect patients in each state and territory. </p>
<p>Where past reforms have tinkered with <a href="https://documents.parliament.qld.gov.au/bills/2022/3093/Health-Practitioner-Regulation-National-Law-and-Other-Legislation-Amendment-Bill-2022---Explanatory-Notes-8010.pdf">the disciplinary powers</a> regulators have to <a href="https://classic.austlii.edu.au/au/legis/qld/bill_en/hprnlaolab2017707/hprnlaolab2017707.html">sanction health professionals</a>, these new proposals take a different tack. </p>
<p>They seek to reorient the “<a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4835893/pdf/12909_2016_Article_634.pdf">inherent power imbalance</a>” between practitioner and patient, in favour of patients. The aim is to increase public information about previously sanctioned practitioners and to better protect those who complain.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-can-the-health-regulator-better-protect-patients-from-sexual-misconduct-199173">How can the health regulator better protect patients from sexual misconduct?</a>
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<h2>What are boundary violations?</h2>
<p>In health-care regulation, health practitioners’ boundary violations (or boundary crossings) cover a spectrum of sexual transgressions against patients. </p>
<p>These obviously include serious or criminal sexual assaults and exploitation. However, they also cover innuendo, intrusive questions and inappropriate physical examinations. Then there are sexual relationships with <a href="https://onlinelibrary.wiley.com/doi/abs/10.5694/mja2.50717">former</a> and current patients – consensual or not.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/574548/original/file-20240208-20-bxfda7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Young woman in therapy session with female therapist, both anonymous" src="https://images.theconversation.com/files/574548/original/file-20240208-20-bxfda7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574548/original/file-20240208-20-bxfda7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574548/original/file-20240208-20-bxfda7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574548/original/file-20240208-20-bxfda7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574548/original/file-20240208-20-bxfda7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574548/original/file-20240208-20-bxfda7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574548/original/file-20240208-20-bxfda7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Boundary violations cover a range of behaviours, including innuendo and intrusive questions.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/anonymous-photo-two-women-during-group-1659333334">Ground Picture/Shutterstock</a></span>
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<p>The Medical Board of Australia’s <a href="https://www.medicalboard.gov.au/codes-guidelines-policies/sexual-boundaries-guidelines.aspx">guidelines for sexual boundaries</a> describes how boundary violations breach patient trust, undermine patient safety, and erode public confidence in the medical profession.</p>
<p>As <a href="https://journals.sagepub.com/doi/10.1177/17557380221080187">much</a> <a href="https://doi.org/10.3389/fpsyg.2022.1005696">research</a> indicates, patients who are violated while seeking health care may <a href="https://psycnet.apa.org/record/2001-17434-004">endure</a> profound distress and experience lifelong trauma.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-doctors-sexual-advances-towards-a-patient-are-never-ok-even-if-consensual-76154">A doctor's sexual advances towards a patient are never ok, even if 'consensual'</a>
</strong>
</em>
</p>
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<h2>How common are boundary violations?</h2>
<p><a href="https://doctors.ajc.com/caught_on_video_but_kept_georgia_medical_license/?ecmp=doctorssexabuse_microsite_stories">Research with patients</a> indicates boundary violations in health care <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8220485/">are</a> <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0006/3572268/Millbank-441-Advance.pdf">under-reported</a>.</p>
<p>Still, Australia’s national regulator of health practitioners, known as Ahpra,
<a href="https://www.ahpra.gov.au/News/2023-07-07-blueprint-update.aspx">received</a> 841 notifications about 728 registered practitioners concerning boundary violations in 2022-2023. This is an increase of more than 220% from 2019-2020.</p>
<p>Of these notifications, 359 related to medical practitioners (including psychiatrists), while 215 related to nurses and 120 to psychologists.</p>
<p>Independent analysis of Australian tribunal cases for boundary violations indicates between roughly <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0006/3572268/Millbank-441-Advance.pdf">65% and 80%</a> of those accused are male.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/rape-sexual-assault-and-sexual-harassment-whats-the-difference-93411">Rape, sexual assault and sexual harassment: what’s the difference?</a>
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<h2>Why now?</h2>
<p>As reported boundary violations have surged, public interest in the issue and its impacts has sharpened.</p>
<p>Media reports have described practitioners engaged in <a href="https://www.abc.net.au/news/2022-05-13/psychiatrist-barred-after-relationship-with-patient/101060720">exploitative sexual</a> <a href="https://www.geelongadvertiser.com.au/subscribe/news/1/?sourceCode=GAWEB_WRE170_a_GGL&dest=https%3A%2F%2Fwww.geelongadvertiser.com.au%2Fnews%2Fgeelong%2Fhealth-watchdogs-receive-hundreds-of-geelong-complaints%2Fnews-story%2F2fc5072ada1c6b38cd8a6865615e3b22&memtype=anonymous&mode=premium">relationships</a>, as well as inappropriate <a href="https://www.abc.net.au/news/2023-02-06/doctors-sexual-misconduct-complaint-system-investigation/101918606">touching</a> and <a href="https://www.abc.net.au/news/2017-08-15/settlement-for-52-men-sexually-abused-by-andrew-churchyard/8808828">physical examinations</a>.</p>
<p>Meanwhile, public inquiries have spotlighted the regulator’s role and responsibilities. </p>
<p>For instance, Tasmania’s <a href="https://www.commissionofinquiry.tas.gov.au/home">inquiry</a> into child sexual abuse examined <a href="https://www.commissionofinquiry.tas.gov.au/__data/assets/pdf_file/0003/681393/Statement-of-Matthew-Hardy,-National-Director-Notifications,-Australian-Health-Practitioner-Regulation-Authority,-27-June-2022.pdf">evidence</a> of Ahpra’s response to sexual abuse by a <a href="https://www.abc.net.au/news/2022-08-17/the-warnings-about-james-geoffrey-griffin-lgh-ignored/101334270">paediatric nurse</a>. The <a href="https://www.nhpo.gov.au/">National Health Practitioner Ombudsman</a>’s <a href="https://www.nhpo.gov.au/safeguarding-confidentiality-review">review</a> found protections for complainants should be strengthened.</p>
<p>At the same time, <a href="https://law.unimelb.edu.au/__data/assets/pdf_file/0006/3572268/Millbank-441-Advance.pdf">several</a> <a href="https://www.mja.com.au/journal/2020/213/5/sexual-misconduct-health-professionals-australia-2011-2016-retrospective">rigorous</a> <a href="https://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2020/11/Millbank.pdf">Australian</a> <a href="https://journals.sagepub.com/doi/10.1177/0067205X221146334">studies</a> have highlighted regulatory weak spots and proposed options for reform.</p>
<p>Here is what is on the table.</p>
<h2>1. More public information about past violations</h2>
<p>This proposed reform would allow Ahpra to disclose the “full regulatory history” of any health professional found guilty of professional misconduct for sexual violations in a civil tribunal or found guilty of sexual offences in a criminal court.</p>
<p>This would raise “red flags” on the public register about certain practitioners, which a patient could access. </p>
<p>Currently, regulatory impositions – such as practice conditions, reprimands, suspensions or deregistrations – are recorded on the register but usually removed once they lapse or expire.</p>
<h2>2. Consistent reinstatement of deregistered practitioners</h2>
<p>This seeks to harmonise across the country how deregistered health practitioners are reinstated.</p>
<p>Currently, only New South Wales law requires disqualified health practitioners to obtain a “<a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-2009-86a#sec.163B">reinstatement order</a>” from a civil tribunal before applying to the relevant health profession council for reinstatement. The tribunal’s deliberations are heard in open hearings, its reasons and decision published to the public, and in turn may be reported by the media and read by patients.</p>
<p>Elsewhere, the state health practitioner boards typically reinstate practitioners without any publicly available decision, or the reasons behind the decision.</p>
<h2>3. Banning non-disclosure agreements</h2>
<p>The 2022 independent investigation into <a href="https://www.ahpra.gov.au/resources/cosmetic-surgery-hub/cosmetic-surgery-review.aspx">cosmetic surgery practitioners</a> in Australia revealed some doctors who resolved disputes privately with aggrieved patients had used non-disclosure or confidentiality agreements, presumably to shield themselves from liability. </p>
<p>While such agreements would <a href="https://www.ahpra.gov.au/Resources/Cosmetic-surgery-hub/Cosmetic-surgery-complaints.aspx">likely</a> be <a href="https://www5.austlii.edu.au/au/legis/nsw/consol_act/hprnl460/s237.html">unenforceable</a>, they may lead patients to falsely believe they are legally bound to silence. </p>
<p>This proposed reform seeks to prohibit health practitioners using non-disclosure agreements to eliminate any chance they might stop or dissuade patients from reporting misconduct.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/574550/original/file-20240208-18-28f8cw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Man signing paper document with pen" src="https://images.theconversation.com/files/574550/original/file-20240208-18-28f8cw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/574550/original/file-20240208-18-28f8cw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/574550/original/file-20240208-18-28f8cw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/574550/original/file-20240208-18-28f8cw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/574550/original/file-20240208-18-28f8cw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/574550/original/file-20240208-18-28f8cw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/574550/original/file-20240208-18-28f8cw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Proposed changes would ban health practitioners from trying to stop patients from reporting them.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/business-man-signing-contract-shallow-focus-106141958">KellySHUTSTOC/Shutterstock</a></span>
</figcaption>
</figure>
<h2>What would the proposed changes mean?</h2>
<p>Many <a href="https://www.abc.net.au/news/2023-02-06/doctors-sexual-misconduct-complaint-system-investigation/101918606">publicised</a> boundary violation <a href="https://www.caselaw.nsw.gov.au/decision/574e7719e4b05f2c4f04e9b7">cases</a> involve practitioners who have been reinstated after disqualification for previous misconduct. This includes where they have <a href="https://www.caselaw.nsw.gov.au/decision/178af5af55762dcca1b45df1">changed their names</a>. </p>
<p>Currently, many patients who have been harmed by serial offenders have no way of knowing a practitioner had been previously sanctioned for the same or similar misconduct.</p>
<p>Data on repeat offending are <a href="https://researchspace.auckland.ac.nz/handle/2292/52810">patchy</a>. However, <a href="https://doi.org/10.1177/0067205X221146334">analysis</a> of the available Australian data indicates repeat offending is “<a href="https://doi.org/10.1080/10383441.2022.2060651">the norm rather than the exception</a>”.</p>
<p>While some health practitioners will see these reforms as oppressive or punitive, only those found guilty in an open tribunal or court of the most serious professional misconduct for boundary-crossing transgressions or sexual crimes would be affected.</p>
<p>While promising, the reforms are not laid in stone. Public consultation is now <a href="https://engage.vic.gov.au/proposed-reforms-to-the-health-practitioner-regulation-national-law">underway</a> until February 19.</p><img src="https://counter.theconversation.com/content/223082/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christopher Rudge was engaged as a special research officer at the Medical Council of NSW in 2018.</span></em></p>Proposed reforms aim to increase public information about previously sanctioned health professionals and to better protect people who complain.Christopher Rudge, Law lecturer, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2172612023-11-27T19:17:49Z2023-11-27T19:17:49ZVoluntary assisted dying is now available in all Australian states. How do the NSW laws compare?<p>From <a href="https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/default.aspx">today</a>, eligible people in New South Wales can ask for voluntary assisted dying. </p>
<p>NSW is the last Australian state to have its voluntary assisted dying laws begin. These laws come into effect following an 18-month implementation period.</p>
<p>Here is who’s eligible to request voluntary assisted dying in NSW and how its laws compare with those in other Australian jurisdictions.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-be-available-to-more-australians-this-year-heres-what-to-expect-in-2023-196209">Voluntary assisted dying will be available to more Australians this year. Here's what to expect in 2023</a>
</strong>
</em>
</p>
<hr>
<h2>Who’s eligible in NSW?</h2>
<p>To be eligible for voluntary assisted dying in NSW, a person <a href="https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/eligibility.aspx">must</a>:</p>
<ul>
<li><p>be an adult with decision-making capacity</p></li>
<li><p>be an Australian citizen, permanent resident or a resident of Australia for at least three continuous years</p></li>
<li><p>have lived in NSW for at least 12 months (unless granted an exemption)</p></li>
<li><p>be experiencing suffering that cannot be relieved in a way the person considers tolerable</p></li>
<li><p>have a condition that is advanced, progressive and will cause death within six months (or 12 months for neurodegenerative diseases)</p></li>
<li><p>be acting voluntarily without pressure or duress.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-soon-be-legal-in-all-states-heres-whats-just-happened-in-nsw-and-what-it-means-for-you-183355">Voluntary assisted dying will soon be legal in all states. Here's what's just happened in NSW and what it means for you</a>
</strong>
</em>
</p>
<hr>
<h2>How do these new laws differ from other states?</h2>
<p>Australian voluntary assisted dying laws are lengthy and tightly regulate the request and assessment process. </p>
<p>A person must make at least three separate requests for voluntary assisted dying, and their eligibility must be assessed by at least two specially trained doctors. The process is overseen by a voluntary assisted dying board (or commission).</p>
<p>The new laws largely follow <a href="https://eprints.qut.edu.au/238547/">the Australian model</a> of voluntary assisted dying, but key differences exist. In NSW:</p>
<ul>
<li><p>people can choose between taking the medication themselves or having the medication administered by a qualified health professional. In other states, administration by health professionals is more limited</p></li>
<li><p>all health-care workers (not just for example, doctors and/or nurse practitioners depending on the state) can raise the option of voluntary assisted dying with the person, provided they also inform the person about palliative care and other treatment options</p></li>
<li><p>nurse practitioners can administer the medication (they cannot in Victoria and South Australia). However, nurses cannot administer it (they can in Tasmania and Queensland) </p></li>
<li><p>non-participating facilities have obligations to facilitate access, including allowing health professionals to enter the facility to provide information. Residential facilities must also allow health professionals to attend to assess for eligibility or administer the medication. In other cases, facilities may be required to transfer the person elsewhere for this to occur. (These obligations do not exist in Victoria, Tasmania and Western Australia)</p></li>
<li><p>the usual waiting period between first and final requests for voluntary assisted dying is five days (compared with nine days in most other states).</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-happens-if-you-want-access-to-voluntary-assisted-dying-but-your-nursing-home-wont-let-you-183364">What happens if you want access to voluntary assisted dying but your nursing home won't let you?</a>
</strong>
</em>
</p>
<hr>
<h2>What’s happening elsewhere?</h2>
<p>Since 2019, all Australian states have progressively introduced voluntary assisted dying. Each state must review their laws after a fixed period, and some states have already started doing so. </p>
<p><strong>Victoria and Western Australia</strong></p>
<p>Victoria was the first state to introduce voluntary assisted dying laws, which became operational in June 2019. In the first four years, <a href="https://www.safercare.vic.gov.au/reports-and-publications/voluntary-assisted-dying-review-board-annual-report-july-2022-to-june-2023#:%7E:text=The%20report%20shows%20that%20since,from%20taking%20the%20prescribed%20substance">912 people died</a> through voluntary assisted dying. </p>
<p>Western Australian laws have been in effect since July 2021. In its first two years of operation, <a href="https://www.health.wa.gov.au/%7E/media/Corp/Documents/Health-for/Voluntary-assisted-dying/VAD-Board-Annual-Report-2022-23.pdf">446 people died</a> through voluntary assisted dying. </p>
<p>Both states have started to review their laws.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-begin-in-wa-this-week-but-one-commonwealth-law-could-get-in-the-way-161982">Voluntary assisted dying will begin in WA this week. But one Commonwealth law could get in the way</a>
</strong>
</em>
</p>
<hr>
<p><strong>Tasmania, Queensland and South Australia</strong></p>
<p>Tasmanian laws have been operational since October 2022, with <a href="https://www.health.tas.gov.au/publications/release-voluntary-assisted-dying-six-month-report-operations">16 people</a> dying through voluntary assisted dying in the first six months. These laws are scheduled to be reviewed after <a href="https://eprints.qut.edu.au/238547/8/VAD_in_Australia_Comparison_Paper.pdf">October 2025</a>. </p>
<p>Queensland and South Australian laws commenced in January 2023. In Queensland, <a href="https://www.health.qld.gov.au/research-reports/reports/departmental/voluntary-assisted-dying-review-board-annual-report">245 people died</a> in the first six months through voluntary assisted dying. In South Australia, <a href="https://www.sahealth.sa.gov.au/wps/wcm/connect/public+content/sa+health+internet/services/primary+and+specialised+services/voluntary+assisted+dying/reporting/voluntary+assisted+dying+reporting">70 people died</a> in the first eight months.</p>
<p>Queensland laws will be reviewed in 2026 and South Australia’s will be reviewed in 2027.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-could-soon-be-legal-in-queensland-heres-how-its-bill-differs-from-other-states-161092">Voluntary assisted dying could soon be legal in Queensland. Here's how its bill differs from other states</a>
</strong>
</em>
</p>
<hr>
<p><strong>Australian Capital Territory and Northern Territory</strong></p>
<p>The territories were previously prevented from passing voluntary assisted dying laws by a federal law, which has now <a href="https://theconversation.com/territories-free-to-make-their-own-voluntary-assisted-dying-laws-in-landmark-decision-heres-what-happens-next-195291">been repealed</a>.</p>
<p>In 2023, the Australian Capital Territory introduced a <a href="https://theconversation.com/voluntary-assisted-dying-is-finally-being-considered-in-the-act-how-would-it-differ-from-state-laws-216733">voluntary assisted dying bill</a> into parliament. The Northern Territory has <a href="https://cmc.nt.gov.au/project-management-office/voluntary-assisted-dying#:%7E:text=It%20is%20led%20by%20co,the%20views%20of%20the%20community">established a panel</a> to make recommendations, and community consultation has begun. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/territories-free-to-make-their-own-voluntary-assisted-dying-laws-in-landmark-decision-heres-what-happens-next-195291">Territories free to make their own voluntary assisted dying laws, in landmark decision. Here's what happens next</a>
</strong>
</em>
</p>
<hr>
<h2>Passing laws does not guarantee access</h2>
<p>Early research and reports from oversight bodies suggest voluntary assisted dying laws are safe, but have reported a range of barriers to access.</p>
<p>Some of the barriers are specific to a specific state’s law. Other barriers have been reported across states. Barriers include: </p>
<ul>
<li><p>Commonwealth restrictions on discussing voluntary assisted dying via <a href="https://research.qut.edu.au/voluntary-assisted-dying-regulation/wp-content/uploads/sites/292/2023/11/Commonwealth-telehealth-ban-is-unfair-barrier-to-VAD-Research-briefing.pdf">telehealth and email</a></p></li>
<li><p>a lack of <a href="https://www.mja.com.au/journal/2023/219/5/access-voluntary-assisted-dying-victoria-qualitative-study-family-caregivers">doctors</a> willing to provide voluntary assisted dying</p></li>
<li><p><a href="https://onlinelibrary.wiley.com/doi/10.5694/mja2.51787">inadequate remuneration</a> for doctors</p></li>
<li><p>a lengthy and complicated <a href="https://www.mja.com.au/journal/2021/215/3/participating-doctors-perspectives-regulation-voluntary-assisted-dying-victoria">administrative process</a>.</p></li>
</ul>
<p>While some barriers may be addressed at the state level, others will require reform at the federal level (for example, telehealth restrictions and inadequate remuneration).</p>
<hr>
<p><em>Correction: this article has been updated to reflect the correct waiting periods for voluntary assisted dying in most states other than NSW.</em></p><img src="https://counter.theconversation.com/content/217261/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Casey is a research fellow at the Australian Centre for Health Law Research. She has been employed on multiple projects as a research fellow, including the Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian Government and the Western Australian Government's Review of the Voluntary Assisted Dying Act 2019. She was also previously engaged as a legal writer for the Voluntary Assisted Dying Training in Queensland.</span></em></p><p class="fine-print"><em><span>Ben White receives funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and state governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, he (with colleagues) has been engaged by the Victorian, Western Australian and Queensland governments to design and provide the legislatively mandated training for health practitioners involved in voluntary assisted dying in those states. He (with Lindy Willmott) has also developed a model bill for voluntary assisted dying for parliaments to consider. He is a sessional member of the Queensland Civil and Administrative Tribunal, which has jurisdiction for some aspects of this state's voluntary assisted dying legislation. Ben is a recipient of an Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian government.</span></em></p><p class="fine-print"><em><span>Katrine was a member of the QUT team which delivered the mandatory training for health professionals participating in voluntary assisted dying in Western Australia and Queensland. </span></em></p><p class="fine-print"><em><span>Lindy Willmott receives or has received funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and state governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, she (with colleagues) has been engaged by the Victorian, Western Australian and Queensland governments to design and provide the legislatively mandated training for health practitioners involved in voluntary assisted dying in those states. She (with Ben White) has also developed a model bill for voluntary assisted dying for parliaments to consider. Lindy Willmott is also a member of the Queensland Voluntary Assisted Dying Review Board, but writes this piece in her capacity as an academic researcher. She is a former board member of Palliative Care Australia.</span></em></p>Here’s who is eligible to request voluntary assisted dying in NSW and how its laws compare with those in other Australian jurisdictions.Casey Haining, Research Fellow, Australian Centre for Health Law Research, Queensland University of TechnologyBen White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of TechnologyKatrine Del Villar, Lecturer, Queensland University of TechnologyLindy Willmott, Professor of Law, Australian Centre for Health Law Research, Queensland University of Technology, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1991732023-02-08T01:05:10Z2023-02-08T01:05:10ZHow can the health regulator better protect patients from sexual misconduct?<figure><img src="https://images.theconversation.com/files/508550/original/file-20230207-29-lqd6v1.jpg?ixlib=rb-1.1.0&rect=35%2C7%2C4707%2C2780&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/many-people-waiting-room-see-doctor-778331905">Shutterstock</a></span></figcaption></figure><p>This week’s ABC Four Corners investigation revealed the Australian Health Practitioner Regulation Agency (Ahpra), or tribunals determining such complaints, allowed a number of doctors sanctioned for sexual misconduct to resume practising. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1622336596245876746"}"></div></p>
<p>The ABC suggests almost 500 practitioners from a range of health professions, many of whom are doctors, have come to Ahpra’s attention for “boundary violations” since 2010. Boundary violations is the generic term for health practitioner sexual behaviour problems, the most serious of which is sexual assault of a patient. </p>
<p>According to the ABC, about one-third of the 500 practitioners remain registered with Ahpra or have been returned to the register.</p>
<p>Health Minister Mark Butler has <a href="https://www.smh.com.au/national/health-minister-orders-rapid-review-of-ahpra-20230202-p5chju.html">ordered a rapid review</a> of whether recommendations from previous reviews have been properly implemented. He <a href="https://www.abc.net.au/news/2023-02-02/doctor-regulation-system-review-after-four-corners-investigation/101923692">told the ABC</a>:</p>
<blockquote>
<p>If that framework is falling short of protecting patient safety, then Australians rightly expect governments at all levels to work to strengthen it.</p>
</blockquote>
<p>So what is the framework? What reforms have been recommended previously? And what needs to happen now to protect patients? </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/who-is-our-health-regulator-ahpra-and-does-it-operate-effectively-101966">Who is our health regulator, AHPRA, and does it operate effectively?</a>
</strong>
</em>
</p>
<hr>
<h2>Breaching doctors’ code of conduct</h2>
<p>The Medical Board of Australia, which governs doctors, has a <a href="https://www.medicalboard.gov.au/Codes-Guidelines-Policies/Code-of-conduct.aspx">code of conduct</a>. It tells doctors that good medical practice involves never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient. </p>
<p>Even if a patient consents to sexual contact, the power imbalance between the patient and the health professional nevertheless means the sexual contact is probably inappropriate. More detail appears in <a href="https://www.medicalboard.gov.au/Codes-Guidelines-Policies/Sexual-boundaries-guidelines.aspx">guidelines</a> specific to sexual boundaries between doctors and patients. </p>
<p>Similar ethical guidance appears in <a href="https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/maintaining-a-professional-boundary-between-you-and-your-patient/maintaining-a-professional-boundary-between-you-and-your-patient">the United Kindom</a> and <a href="https://www.mcnz.org.nz/assets/standards/b3ad8bfba4/Good-Medical-Practice.pdf">New Zealand</a>. </p>
<figure class="align-center ">
<img alt="Doctor types on laptop next to a stethoscope" src="https://images.theconversation.com/files/508552/original/file-20230207-25-4dzrzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/508552/original/file-20230207-25-4dzrzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/508552/original/file-20230207-25-4dzrzt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/508552/original/file-20230207-25-4dzrzt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/508552/original/file-20230207-25-4dzrzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/508552/original/file-20230207-25-4dzrzt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/508552/original/file-20230207-25-4dzrzt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Doctors receive plenty of advice on what is and isn’t appropriate or ethical conduct.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/doctors-working-on-laptop-computer-writing-785808469">Shutterstock</a></span>
</figcaption>
</figure>
<h2>What happens if a clinician assaults a patient?</h2>
<p>Mandatory reporting rules mean health professionals have an obligation to report sexual misconduct by their peers, generally to Ahpra. Failure to do so may itself be unsatisfactory professional conduct.</p>
<p>Of course, a patient may make a direct complaint of sexual misconduct to Ahpra or to local health-care complaints organisations. </p>
<p>Immediate action can be taken by Ahpra (or other bodies in New South Wales and Queensland) pending proceedings being brought against health practitioners in various tribunals across Australia. </p>
<p>Those proceedings will determine if a boundary violation occurred and provide for an appropriate response, which may prevent the health practitioner from practising or may impose lesser constraints, such as mentoring or education. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/rape-sexual-assault-and-sexual-harassment-whats-the-difference-93411">Rape, sexual assault and sexual harassment: what’s the difference?</a>
</strong>
</em>
</p>
<hr>
<p>Patients may also report sexual assault (or other offences such as possession of child abuse materials) to the police, which may lead to criminal prosecution and possible imprisonment. Convicted health practitioners may then not be able to obtain clearance for <a href="https://www.service.nsw.gov.au/transaction/apply-for-a-working-with-children-check">working with children</a>, making it very difficult if not impossible to continue work as a doctor or other health practitioner. </p>
<p>Patients suffering injury (usually mental harm) can seek compensation by suing the health practitioner and, in some cases, their hospital or clinic. </p>
<p>Patients rarely sue Ahpra for failing to take prompt and appropriate regulatory steps. There is perhaps only <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2014/258.html">one reported case</a> involving Ahpra, which settled before a hearing. </p>
<h2>What’s going wrong?</h2>
<figure class="align-right ">
<img alt="Patient sits on hospital bed, texting" src="https://images.theconversation.com/files/508549/original/file-20230207-17-kngtkd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/508549/original/file-20230207-17-kngtkd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/508549/original/file-20230207-17-kngtkd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/508549/original/file-20230207-17-kngtkd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/508549/original/file-20230207-17-kngtkd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/508549/original/file-20230207-17-kngtkd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/508549/original/file-20230207-17-kngtkd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Patients and doctors say the process takes too long.</span>
<span class="attribution"><a class="source" href="https://unsplash.com/photos/BrECcnO7hsg">Unsplash/Alexander Grey</a></span>
</figcaption>
</figure>
<p>Incidents of health professionals sexually assaulting patients are of course deeply concerning. But whether anything is “going wrong” with the current regulatory system may be debated.</p>
<p>Patients in different states have access to different information about health practitioners – this could be improved. Patients and doctors have also reportedly complained that the processes of Ahpra, the tribunals or the courts can take “too long”. </p>
<p>Whether permitting some health practitioners to return to practice after boundary violations is appropriate requires careful scrutiny of the history of the complaint. </p>
<p>And as mentioned in the ABC program, health practitioners, patients and Ahrpa could well benefit from more research about what is and is not working to protect patients.</p>
<h2>How can we better protect patients?</h2>
<p>Ahpra, which only come into existence in 2010, has taken steps to improve how it responds to boundary violation complaints. </p>
<p>In 2016, the Medical Board of Australia and Ahpra commissioned an <a href="https://www.nhpo.gov.au/chaperone-review">independent review</a> into the use of chaperones to protect patients. The aim of a chaperone is to have an independent person present to supervise a doctor. Unfortunately the review reported chaperones did not adequately protect patients:</p>
<blockquote>
<p>Chaperone conditions are not wholly effective to prevent patients being exposed to harm and, in some cases, sexually assaulted. Their use is largely confined to private medical practice. The system relies on inadequately informed and trained chaperones, many in a conflicted situation by being employed by the practitioner they are to observe and report on.</p>
</blockquote>
<p>Chaperones are still used today in some circumstances, but probably less often.</p>
<p>A <a href="https://www.nhpo.gov.au/">National Health Practitioner Ombudsman</a> has been established to investigate complaints and make recommendations to improve the regulation of Australia’s health practitioners. Its work is probably not well known, but it does <a href="https://www.nhpo.gov.au/reports-and-publications">publish</a> its reports and submissions.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1622434974300512256"}"></div></p>
<p>Ahpra has also recently <a href="https://www.ahpra.gov.au/News/Consultations.aspx">invited feedback</a> from health practitioners, employers and members of the public on the future uses of the data it collects and stores. It sought views on publishing additional information about health practitioners and their practice on the public register. The feedback process finished only recently, so we do not yet know what the outcome will be.</p>
<p>For boundary violation cases, there may be an argument for more transparency. This would include information about the constraints imposed on health practitioners remaining publicly visible on the Ahpra public register permanently, even if the practitioner’s period of suspension, supervision, or the like, eventually lapses.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-doctors-sexual-advances-towards-a-patient-are-never-ok-even-if-consensual-76154">A doctor's sexual advances towards a patient are never ok, even if 'consensual'</a>
</strong>
</em>
</p>
<hr>
<p>Perhaps transparency of information is an area for attention more broadly. The ABC reported that only in NSW is information made publicly available when suspended health practitioners apply to return to practice. Arguably, this should be rolled out to the other Australian jurisdictions.</p>
<p>If patient protection cannot be confidently maintained, especially with “repeat offender” health practitioners, we may see calls for a “one strike and you are out” provision. This would mean health practitioners found to have serious or multiple boundary violations may never be permitted to return to practice. </p>
<p>This would be a serious step, but further research on the operation of the current system may assist in assessing the merit of that type of law reform.</p><img src="https://counter.theconversation.com/content/199173/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bill Madden is a lawyer in private practice.</span></em></p>We may need to reconsider how we sanction serious or ‘repeat offenders’. That may include permanently barring them from practice.Bill Madden, Adjunct Professor, Australian Centre for Health Law Research, School of Law, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1969472023-01-15T19:00:35Z2023-01-15T19:00:35ZThinking about cosmetic surgery? At last, some clarity on who can call themselves a surgeon<figure><img src="https://images.theconversation.com/files/504385/original/file-20230113-26-qrp3n5.jpg?ixlib=rb-1.1.0&rect=2%2C0%2C1914%2C1279&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.pexels.com/photo/two-person-doing-surgery-inside-room-1250655/">Vidal Balielo Jr/Pexels</a>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>When is a surgeon not a surgeon? It’s a riddle that’s long puzzled regulators and consumers. But it may soon be solved. </p>
<p>State and territory health ministers have <a href="https://www.health.gov.au/sites/default/files/2022-12/health-ministers-meeting-communique-14-december-2022.pdf">decided to restrict</a> the title “surgeon” to specialist doctors. The move represents a significant change in Australian medical regulation.</p>
<p>So, if you’re thinking of having cosmetic surgery in 2023 (or beyond), these reforms might help you choose the right health professional.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/linda-evangelista-says-fat-freezing-made-her-a-recluse-cryolipolysis-can-do-the-opposite-to-whats-promised-168657">Linda Evangelista says fat freezing made her a recluse. Cryolipolysis can do the opposite to what's promised</a>
</strong>
</em>
</p>
<hr>
<h2>What’s the problem?</h2>
<p>For as long as cosmetic enhancements have been offered in Australia, there have been no rules about which medical practitioners can call themselves cosmetic surgeons. </p>
<p>Consequently, any registered medical practitioner may call themselves a cosmetic surgeon in Australia, even though other specialist titles are <a href="https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2009-86a#sec.115">protected</a> <a href="https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2009-86a#pt.7-div.10">under legislation</a>. </p>
<p>A “plastic surgeon”, for instance, needs to have completed postgraduate training in surgery certified by the Australian Medical Council and Medical Board of Australia. In doing so, they attain the Australian equivalent of “board certification”, a term you might be familiar with from American TV shows, such as <a href="https://www.usanetwork.com/botched">Botched</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/whos-the-best-doctor-for-a-tummy-tuck-or-eyelid-surgery-the-latest-review-doesnt-actually-say-189700">Who's the best doctor for a tummy tuck or eyelid surgery? The latest review doesn't actually say</a>
</strong>
</em>
</p>
<hr>
<h2>How did we get here?</h2>
<p>Arguments about who should be allowed call themselves a cosmetic surgeon have persisted for more than 20 years.</p>
<p>In 1999, the New South Wales Health Care Complaints Commission detailed the risks and dangers of the lack of restrictions in its <a href="https://www.hccc.nsw.gov.au/ArticleDocuments/158/Cosm%20report.pdf">Cosmetic Surgery Report</a>.</p>
<p>The report recommended all medical practitioners who performed invasive surgery as surgeons be trained to the standard required of <a href="https://www.surgeons.org/Resources/reports-guidelines-publications/useful-guides-standards/RACS-Professional-Skills-Curriculum">Fellows of the Royal Australasian College of Surgeons</a>.</p>
<p>These reforms have never been adopted, partly due to resistance from some doctors. These doctors <a href="https://engage.vic.gov.au/download/document/21586">have argued</a> they are entitled to call themselves surgeons because they hold the traditional medical degree, called the Bachelor of Medicine/Bachelor of Surgery (MBBS). Despite its name, the degree provides only rudimentary surgical training.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/502501/original/file-20221222-26-mx1fnh.jpg?ixlib=rb-1.1.0&rect=0%2C1%2C1000%2C664&q=45&auto=format&w=1000&fit=clip"><img alt="Surgeon with scalpel performing cosmetic surgery to face" src="https://images.theconversation.com/files/502501/original/file-20221222-26-mx1fnh.jpg?ixlib=rb-1.1.0&rect=0%2C1%2C1000%2C664&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/502501/original/file-20221222-26-mx1fnh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/502501/original/file-20221222-26-mx1fnh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/502501/original/file-20221222-26-mx1fnh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/502501/original/file-20221222-26-mx1fnh.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/502501/original/file-20221222-26-mx1fnh.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/502501/original/file-20221222-26-mx1fnh.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Who can call themselves a surgeon? It’s been a long-standing debate.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/operation-on-eye-cataract-surgery-1351111802">Shutterstock</a></span>
</figcaption>
</figure>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/friday-essay-the-ugly-history-of-cosmetic-surgery-56500">Friday essay: the ugly history of cosmetic surgery</a>
</strong>
</em>
</p>
<hr>
<h2>What’s happened since?</h2>
<p>The number of cosmetic surgery procedures has <a href="https://www.plasticsurgery.org/documents/News/Statistics/2020/cosmetic-procedure-trends-2020.pdf">increased</a> over the past 20 years. </p>
<p>Social media continues to popularise treatments, such as <a href="https://www.theguardian.com/lifeandstyle/2022/dec/30/buccal-fat-why-cosmetic-surgeons-are-removing-this-unassuming-body-part">buccal (cheek) fat removal</a> and the <a href="https://plasticsurgery.org.au/procedures/surgical-procedures/buttocks-lift/">Brazilian butt lift</a>. Many of these surgeries expose the patient to significant risks of harm.</p>
<p>Allegations of unsafe surgeons dubbed “<a href="https://pubmed.ncbi.nlm.nih.gov/35338692/">cosmetic cowboys</a>” have surfaced in the media. And the range and seriousness of complaints about unsafe cosmetic treatments (some leading to <a href="https://www.parliament.nsw.gov.au/ladocs/inquiries/2476/Final%20Report%20-%20Cosmetic%20Health%20Service%20Complaints%20in%20New%20South%20Wales.PDF">fatal outcomes</a>) have been of increasing concern to governments and regulators. </p>
<p>In 2018, these concerns triggered a <a href="https://www.parliament.nsw.gov.au/committees/inquiries/Pages/inquiry-details.aspx?pk=2476">NSW parliamentary inquiry</a> and led to a new <a href="https://www.hccc.nsw.gov.au/Health-Providers/Health-Organisations/code-of-conduct">code of conduct for health organisations</a>, which came into effect last September.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-do-normal-labia-look-like-sometimes-doctors-are-the-wrong-people-to-ask-112513">What do normal labia look like? Sometimes doctors are the wrong people to ask</a>
</strong>
</em>
</p>
<hr>
<p>The <a href="https://www.ahpra.gov.au">Australian Health Practitioner Regulation Agency</a> (AHPRA) has also recently taken action. Some of the doctors mentioned in media coverage have had their medical practice <a href="https://www.ahpra.gov.au/News/2022-09-01-Ahpra-MBA-CSR-reply.aspx">restricted or have been suspended</a> from practice altogether. </p>
<p>AHPRA has also formulated (but not finalised) an endorsement system to set new standards for <a href="https://www.ahpra.gov.au/Resources/Cosmetic-surgery-hub/About-endorsement.aspx">cosmetic surgeons</a>. It’s also established a cosmetic surgery enforcement unit to <a href="https://www.ahpra.gov.au/News/2022-09-02-support-for-cosmetic-reform.aspx">enhance complaints and investigations</a> through a cosmetic surgery <a href="https://www.ahpra.gov.au/News/2022-09-05-cosmetic-hotline.aspx">complaints hotline</a>.</p>
<p>However, some have <a href="https://www.smh.com.au/national/this-solution-for-cosmetic-surgery-rogues-fails-patients-20220831-p5be6g.html">criticised these changes</a> <a href="https://aestheticplasticsurgeons.org.au/asaps_media_release/ahpra-confirms-national-law-will-now-protect-the-title-surgeon/">as</a> <a href="https://www.watoday.com.au/politics/federal/regulator-announces-cosmetic-surgery-crackdown-but-won-t-hit-pause-on-1-4bn-industry-20220831-p5be4t.html?ref=rss&utm_medium=rss&utm_source=rss_feed">inadequate</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/who-is-our-health-regulator-ahpra-and-does-it-operate-effectively-101966">Who is our health regulator, AHPRA, and does it operate effectively?</a>
</strong>
</em>
</p>
<hr>
<h2>What happens now?</h2>
<p>In December last year and after <a href="https://engage.vic.gov.au/medical-practitioners-use-title-surgeon-under-national-law">public consultation</a>, Australian health ministers decided to implement legislation that restricts the title of “surgeon”.</p>
<p>The <a href="https://oia.pmc.gov.au/published-impact-analyses-and-reports/medical-practitioners-use-title-surgeon-under-national-law-0">consultation report</a> warned that doctors’ continuing use of the title “cosmetic surgeon” might not just diminish public confidence, but chafe against recent <a href="https://www.parliament.qld.gov.au/Work-of-Committees/Committees/Committee-Details?cid=0&id=4162">updates to the health practitioner law</a> intended to make health regulators, such as AHPRA, put consumer protection first.</p>
<p>Soon, these legal amendments will restrict the title “surgeon” to doctors holding “specialist registrations” in surgery, obstetrics and gynaecology, or ophthalmology.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/health-check-why-can-you-feel-groggy-days-after-an-operation-74989">Health Check: why can you feel groggy days after an operation?</a>
</strong>
</em>
</p>
<hr>
<h2>What does this mean for doctors and consumers?</h2>
<p>Although the new law is yet to be drafted, the impact of the change may be significant – for doctors and consumers alike. </p>
<p>Some doctors who have long promoted themselves as surgeons will be prevented from doing so, with disciplinary action or even prosecution on the cards should they continue to call themselves surgeons.</p>
<p>For consumers, the longstanding riddle about who is a “real” surgeon may soon be a little clearer.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/504384/original/file-20230113-26-xaug0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Patient and doctor talking across desk" src="https://images.theconversation.com/files/504384/original/file-20230113-26-xaug0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/504384/original/file-20230113-26-xaug0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/504384/original/file-20230113-26-xaug0q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/504384/original/file-20230113-26-xaug0q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/504384/original/file-20230113-26-xaug0q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/504384/original/file-20230113-26-xaug0q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/504384/original/file-20230113-26-xaug0q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Consumers may soon have more information to help them choose the right doctor for their surgery.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/doctor-patient-discussing-something-just-hands-613484831">Shutterstock</a></span>
</figcaption>
</figure>
<h2>Will this fix things?</h2>
<p>Will this completely solve the problem of increased complaints and injuries in cosmetic surgery? That’s unlikely. </p>
<p>It still remains unclear how AHPRA’s <a href="https://www.ahpra.gov.au/News/2022-09-01-Ahpra-MBA-CSR-reply.aspx">new approach</a> will interact with the new restricted title, or how demanding the new <a href="https://www.amc.org.au/cosmetic-surgery/">accreditation standards</a> for endorsed cosmetic surgeons will be.</p>
<p>In the meantime, it’s still important for consumers to inform themselves about the skills and training of their chosen practitioner. They can check the doctor’s <a href="https://www.hccc.nsw.gov.au/Hearings-decisions/Cancelled-or-Suspended-Health-Practitioners">AHPRA registration</a> and identify whether they’re a member of any relevant society, such as the <a href="https://plasticsurgery.org.au/information-for-patients/is-your-surgeon-an-asps-member/">Australian Society of Plastic Surgeons</a>. </p>
<p>Having said that, the forthcoming changes to the meaning of the phrase “cosmetic surgeon” promises to make that homework just a little simpler.</p><img src="https://counter.theconversation.com/content/196947/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Christopher Rudge was formerly a legal research associate at the Medical Council of New South Wales.</span></em></p><p class="fine-print"><em><span>Cameron Stewart does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>State and territory health ministers have decided to restrict the title ‘surgeon’ to specially trained doctors. It’s a significant change for consumers and doctors.Christopher Rudge, Law lecturer, University of SydneyCameron Stewart, Professor at Sydney Law School, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1833642022-05-30T20:32:34Z2022-05-30T20:32:34ZWhat happens if you want access to voluntary assisted dying but your nursing home won’t let you?<figure><img src="https://images.theconversation.com/files/465198/original/file-20220525-24-g1ekn6.jpg?ixlib=rb-1.1.0&rect=1%2C1%2C997%2C664&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/birthroom-hospital-equipment-85290190">Shutterstock</a></span></figcaption></figure><p>Voluntary assisted dying is now lawful in <a href="https://theconversation.com/voluntary-assisted-dying-will-soon-be-legal-in-all-states-heres-whats-just-happened-in-nsw-and-what-it-means-for-you-183355">all Australian states</a>. There is also <a href="https://nationalseniors.com.au/uploads/VAD-Report-correct-month-12.8.21.pdf">widespread community support</a> for it.</p>
<p>Yet some residential institutions, such as hospices and aged-care facilities, are obstructing access despite the law not specifying whether they have the legal right to do so. </p>
<p>As voluntary assisted dying is implemented across the country, institutions blocking access to it will likely become more of an issue. </p>
<p>So addressing this will help everyone – institutions, staff, families and, most importantly, people dying in institutions who wish to have control of their end.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-soon-be-legal-in-all-states-heres-whats-just-happened-in-nsw-and-what-it-means-for-you-183355">Voluntary assisted dying will soon be legal in all states. Here's what's just happened in NSW and what it means for you</a>
</strong>
</em>
</p>
<hr>
<h2>The many ways to block access</h2>
<p>While voluntary assisted dying legislation recognises the right of doctors to <a href="https://theconversation.com/was-take-on-assisted-dying-has-many-similarities-with-the-victorian-law-and-some-important-differences-121554">conscientiously object</a> to it, the law is generally silent on the rights of institutions to do so.</p>
<p>While the institution where someone lives has no legislated role in voluntary assisted dying, it can refuse access in various ways, including:</p>
<ul>
<li><p>restricting staff responding to a discussion a resident initiates about voluntary assisted dying</p></li>
<li><p>refusing access to health professionals to facilitate it, and</p></li>
<li><p>requiring people who wish to pursue the option to leave the facility.</p></li>
</ul>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/planning-for-death-must-happen-long-before-the-last-few-days-of-life-104860">Planning for death must happen long before the last few days of life</a>
</strong>
</em>
</p>
<hr>
<h2>Here’s what happened to ‘Mary’</h2>
<p>Here is a hypothetical example based on cases one of us (Charles Corke) has learned of via his role at Victoria’s <a href="https://www.safercare.vic.gov.au/about/vadrb">Voluntary Assisted Dying Review Board</a>. </p>
<p>We have chosen to combine several different cases into one, to respect the confidentiality of the individuals and organisations involved.</p>
<p>“Mary” was a 72-year-old widow who moved into a private aged-care facility when she could no longer manage independently in her own home due to advanced lung disease.</p>
<p>While her intellect remained intact, she accepted she had reached a stage at which she needed significant assistance. She appreciated the help she received. She liked the staff and they liked her.</p>
<p>After a year in the facility, during which time her lung disease got much worse, Mary decided she wanted access to voluntary assisted dying. Her children were supportive, particularly as this desire was consistent with Mary’s longstanding views. </p>
<p>Mary was open about her wish with the nursing home staff she felt were her friends. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/465200/original/file-20220525-22-3r79vc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Sick elderly patient in hospital bed, nurse wearing gloves holding fingertips" src="https://images.theconversation.com/files/465200/original/file-20220525-22-3r79vc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/465200/original/file-20220525-22-3r79vc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/465200/original/file-20220525-22-3r79vc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/465200/original/file-20220525-22-3r79vc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/465200/original/file-20220525-22-3r79vc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=425&fit=crop&dpr=1 754w, https://images.theconversation.com/files/465200/original/file-20220525-22-3r79vc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=425&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/465200/original/file-20220525-22-3r79vc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=425&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Mary’s condition worsened so she requested voluntary assisted dying.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/hospital-ward-senior-female-resting-bed-1985507447">Shutterstock</a></span>
</figcaption>
</figure>
<p>The executive management of the nursing home heard of her intentions. This resulted in a visit at which Mary was told, in no uncertain terms, her wish to access voluntary assisted dying would not be allowed. She would be required to move out, unless she agreed to change her mind. </p>
<p>Mary was upset. Her family was furious. She really didn’t want to move, but really wanted to continue with voluntary assisted dying “in her current home” (as she saw it).</p>
<p>Mary decided to continue with her wish. Her family took her to see two doctors registered to provide assessments for voluntary assisted dying, who didn’t work at the facility. Mary was deemed eligible and the permit was granted. Two pharmacists visited Mary at the nursing home, gave her the medication and instructed her how to mix it and take it. </p>
<p>These actions required no active participation from the nursing home or its staff.</p>
<p>Family and friends arranged to visit at the time Mary indicated she planned to take the medication. She died peacefully, on her own terms, as she wished. The family informed the nursing home staff their mother had died. Neither family nor staff mentioned voluntary assisted dying.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-all-hope-for-a-good-death-but-many-aged-care-residents-are-denied-proper-end-of-life-care-156105">We all hope for a 'good death'. But many aged-care residents are denied proper end-of-life care</a>
</strong>
</em>
</p>
<hr>
<h2>Staff are in a difficult position too</h2>
<p>There is widespread community support for voluntary assisted dying. In a 2021 survey by National Seniors Australia, <a href="https://nationalseniors.com.au/uploads/VAD-Report-correct-month-12.8.21.pdf">more than 85%</a> of seniors agreed it should be available.</p>
<p>So it’s likely there will be staff who are supportive in most institutions. For instance, in a survey of attitudes to voluntary assisted dying in a large public tertiary hospital, <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/imj.15285">88% of staff</a> supported it becoming lawful.</p>
<p>So a blanket policy to refuse dying patients access to voluntary assisted dying is likely to place staff in a difficult position. An institution risks creating a toxic workplace culture, in which clandestine communication and fear become entrenched.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/where-can-you-choose-to-end-your-life-56246">Where can you choose to end your life?</a>
</strong>
</em>
</p>
<hr>
<h2>What could we do better?</h2>
<p><strong>1. Institutions need to be up-front about their policies</strong></p>
<p>Institutions need to be completely open about their policies on voluntary assisted dying and whether they would obstruct any such request in the future. This is so patients and families can factor this into deciding on an institution in the first place.</p>
<p><strong>2. Institutions need to consult their stakeholders</strong></p>
<p>Institutions should consult their stakeholders about their policy with a view to creating a “<a href="https://bmcpalliatcare.biomedcentral.com/articles/10.1186/s12904-021-00891-3">safe</a>” environment for residents and staff – for those who want access to voluntary assisted dying or who wish to support it, and for those who don’t want it and find it confronting.</p>
<p><strong>3. Laws need to change</strong></p>
<p>Future legislation should define the extent of an institution’s right to obstruct a resident’s right to access voluntary assisted dying. </p>
<p>There should be safeguards in all states (as is already legislated <a href="https://documents.parliament.qld.gov.au/tp/2021/5721T707.pdf">in Queensland</a>), including the ability for individuals to be referred in sufficient time to another institution, should they wish to access voluntary assisted dying. </p>
<p>Other states should consider whether it is reasonable to permit a resident, who does not wish to move, to be able to stay and proceed with their wish, without direct involvement of the institution. </p>
<hr>
<p><em>The opinions expressed in this article are those of the authors and do not necessarily reflect the views of Victoria’s Voluntary Assisted Dying Review Board.</em></p><img src="https://counter.theconversation.com/content/183364/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>A/Prof Charlie Corke is Deputy Chair of the Victorian Voluntary Assisted Dying Review Board</span></em></p><p class="fine-print"><em><span>Neera Bhatia does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Aged care facilities and hospices can block access to voluntary assisted dying, despite it being legal in your state.Neera Bhatia, Associate Professor in Law, Deakin UniversityCharles Corke, Associate Professor of Medicine, Deakin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1833552022-05-19T03:46:18Z2022-05-19T03:46:18ZVoluntary assisted dying will soon be legal in all states. Here’s what’s just happened in NSW and what it means for you<figure><img src="https://images.theconversation.com/files/464131/original/file-20220518-20-n3i9xs.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5112%2C2874&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/hospital-sick-male-patient-sleeps-on-1190997985">Shutterstock</a></span></figcaption></figure><p>The last state in Australia, New South Wales, <a href="https://www.abc.net.au/news/2022-05-19/voluntary-assisted-dying-laws-pass/101079940">has today</a> <a href="https://www.smh.com.au/politics/nsw/voluntary-assisted-dying-legalised-in-nsw-20220519-p5amo0.html">passed its voluntary assisted dying bill</a>. This means the vast majority of the population now lives in a jurisdiction where voluntary assisted dying is, or will be, lawful.</p>
<p>However, voluntary assisted dying is not yet available in NSW. As in other states, there is an 18 month implementation period to establish how it would work.</p>
<p>Here’s what’s just happened in NSW, what can be learned from other states, and what to expect next.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/planning-for-death-must-happen-long-before-the-last-few-days-of-life-104860">Planning for death must happen long before the last few days of life</a>
</strong>
</em>
</p>
<hr>
<h2>What does the NSW legislation say?</h2>
<p>The NSW legislation reflects the broad Australian model of regulating voluntary assisted dying in the other states.</p>
<p>It will be available to an adult with decision-making capacity who has an advanced and progressive illness that will cause death, likely within six months (or 12 months for neurodegenerative conditions). </p>
<p>Other eligibility criteria include the patient is suffering, and their choice is voluntary and enduring. Two senior doctors, who have completed mandatory training, will each conduct a rigorous eligibility assessment. A voluntary assisted dying board will be established to ensure the system is operating safely. </p>
<p>Each state has variations in its voluntary assisted dying laws. One of note in NSW is a person can choose between taking the medication themselves or having a health practitioner administer the medication to them. </p>
<p>In other states, although both methods are allowed, self-administration is the default method.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/factcheck-qanda-do-80-of-australians-and-up-to-70-of-catholics-and-anglicans-support-euthanasia-laws-76079">FactCheck Q&A: do 80% of Australians and up to 70% of Catholics and Anglicans support euthanasia laws?</a>
</strong>
</em>
</p>
<hr>
<h2>What does this mean for people in NSW?</h2>
<p>During the 18 months between the legislation passing and implementation, NSW can benefit from the experience of the <a href="https://end-of-life.qut.edu.au/assisteddying">five other states</a>. </p>
<p>Victoria was the first to have legalised voluntary assisted dying <a href="https://theconversation.com/voluntary-assisted-dying-will-soon-be-legal-in-victoria-and-this-is-what-you-need-to-know-111836">in 2019</a> followed by Western Australia <a href="https://theconversation.com/voluntary-assisted-dying-will-begin-in-wa-this-week-but-one-commonwealth-law-could-get-in-the-way-161982">in 2021</a>. Tasmania, South Australia and Queensland have also passed similar legislation but their laws are not yet in force.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/one-year-of-voluntary-assisted-dying-in-victoria-400-have-registered-despite-obstacles-141054">One year of voluntary assisted dying in Victoria: 400 have registered, despite obstacles</a>
</strong>
</em>
</p>
<hr>
<p>This just leaves the Australian Capital Territory and Northern Territory without voluntary assisted dying laws.</p>
<p>One key lesson for NSW is for people to access voluntary assisted dying, there need to be <a href="https://eprints.qut.edu.au/212110/1/What_the_doctor_would_prescribe_OMEGA_eprints_.pdf">sufficient doctors trained and willing</a> to participate from the start. </p>
<p>This requires the legislatively-mandated training to be ready early, and incentives and supports provided for doctors to undertake it. It also requires knowing which doctors may be open to participating.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-begin-in-wa-this-week-but-one-commonwealth-law-could-get-in-the-way-161982">Voluntary assisted dying will begin in WA this week. But one Commonwealth law could get in the way</a>
</strong>
</em>
</p>
<hr>
<p>A linked issue from Victoria and WA is the critical facilitating role played by “<a href="https://www.health.vic.gov.au/patient-care/getting-support">voluntary assisted dying care navigators</a>”. These health professionals support patients, families and other health professionals who wish to seek or provide voluntary assisted dying, and guide them through the complex eligibility assessment procedure. </p>
<p>This role includes the vital function of connecting patients with doctors. The establishment of this small but critical workforce, well before voluntary assisted dying is available, is essential.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/464134/original/file-20220519-20-eujbju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Doctor pointing pen to clipboard while patient waits" src="https://images.theconversation.com/files/464134/original/file-20220519-20-eujbju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/464134/original/file-20220519-20-eujbju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/464134/original/file-20220519-20-eujbju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/464134/original/file-20220519-20-eujbju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/464134/original/file-20220519-20-eujbju.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/464134/original/file-20220519-20-eujbju.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/464134/original/file-20220519-20-eujbju.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">We need enough health staff to support people and their families to navigate the system.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/doctors-patients-sit-talk-table-near-1182217003">Shutterstock</a></span>
</figcaption>
</figure>
<p>A final observation from other states’ implementation is the importance of education for key stakeholders.</p>
<p>Potentially eligible people can only access voluntary assisted dying if they are aware it exists. So there needs to be a clear public communication strategy to tell the community that voluntary assisted dying is available, and where to find more information. </p>
<p>Building awareness for the broader health workforce (beyond those providing voluntary assisted dying) is also important. </p>
<p>These two groups are linked. <a href="https://eprints.qut.edu.au/199638/8/Community_knowledge_of_law_on_end_of_life_decision_making_An_Australian_telephone_survey_NC.pdf">Evidence</a> shows people wanting more information about end-of-life law are likely to ask health professionals.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-all-hope-for-a-good-death-but-many-aged-care-residents-are-denied-proper-end-of-life-care-156105">We all hope for a 'good death'. But many aged-care residents are denied proper end-of-life care</a>
</strong>
</em>
</p>
<hr>
<h2>What happens in NSW once the law kicks in?</h2>
<p>The end of 2023, when the NSW voluntary assisted dying laws are expected to begin, may seem a long time away. But the experience of other states has been that there is little time to waste. This is a major health, legal and community initiative and implementing it is challenging.</p>
<p>There will be patients seeking access to it as soon as the law begins. So the system must be ready. </p>
<p>In WA, there was higher-than-anticipated early demand. Within the first four months of the law being implemented, <a href="https://www.youtube.com/watch?v=569wRovIEVM">50 terminally-ill people</a> chose to die using voluntary assisted dying. As a state with a significantly larger population, NSW should be anticipating more.</p>
<p>So work must start now to ensure that as soon as the NSW law begins, there is a functional system ready to support people eligible for voluntary assisted dying.</p>
<h2>How about the territories?</h2>
<p>As territories, the NT and ACT <a href="https://eprints.qut.edu.au/221103/8/_Failed_voluntary_euthanasia_law_reform_in_Australia_Two_decades_of_trends_models_and_politics_NC.pdf">cannot legislate</a> on voluntary assisted dying. The Commonwealth passed <a href="http://classic.austlii.edu.au/au/legis/cth/num_act/ela1997161/">legislation</a> in 1997 to prohibit this.</p>
<p>However, there have been <a href="https://www.abc.net.au/news/2022-05-10/calls-to-lift-voluntary-euthanasia-ban-territories-election/101050870">repeated calls</a> for this to change. If this were to occur, this would open the possibility for the territories to follow the lead of the states and pass their own laws permitting voluntary assisted dying.</p><img src="https://counter.theconversation.com/content/183355/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ben White receives funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and State Governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, he (with colleagues) has been engaged by the Victorian, Western Australian and Queensland Governments to design and provide the legislatively-mandated training for doctors involved in voluntary assisted dying in those States. He (with Lindy Willmott) has also developed a model Bill for voluntary assisted dying for parliaments to consider. Ben White is a recipient of an Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian Government.</span></em></p><p class="fine-print"><em><span>Lindy Willmott receives or has received funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and State Governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, she (with colleagues) has been engaged by the Victorian, Western Australian and Queensland Governments to design and provide the legislatively-mandated training for doctors involved in voluntary assisted dying in those States. She (with Ben White) has also developed a model Bill for voluntary assisted dying for parliaments to consider.</span></em></p>Voluntary assisted dying is now legal, or will soon will be, in all six states. But we need enough doctors to put their hands up for training.Ben White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of TechnologyLindy Willmott, Professor of Law, Australian Centre for Health Law Research, Queensland University of Technology, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1726002021-11-26T02:11:32Z2021-11-26T02:11:32ZVoluntary assisted dying is one step closer in NSW. Now the negotiation starts<figure><img src="https://images.theconversation.com/files/434044/original/file-20211125-25-14k457h.jpg?ixlib=rb-1.1.0&rect=2%2C0%2C995%2C666&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/elderly-senior-aged-patient-on-bed-1576043542">Shutterstock</a></span></figcaption></figure><p>New South Wales is moving closer to legalising voluntary assisted dying. But there are hurdles ahead.</p>
<p>After days of speeches in the NSW lower house, MPs voted yesterday – 53 in favour and 36 against – to consider the <a href="https://www.parliament.nsw.gov.au/bill/files/3891/First%20Print.pdf">Voluntary Assisted Dying Bill 2021</a> in detail.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1463773882796576774"}"></div></p>
<p>Now MPs will consider multiple amendments, largely around proposed safeguards, before the bill returns to the upper house.</p>
<p>So what does this mean for terminally-ill people in NSW?</p>
<p>Independent MP Alex Greenwich tabled the bill in the lower house <a href="https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=3891">last month</a>. The bill largely reflects the voluntary assisted dying legislation passed in other Australian states. </p>
<p>To be eligible for voluntary assisted dying, a person must be:</p>
<ul>
<li><p>an adult with decision-making capacity</p></li>
<li><p>have a condition that is advanced, progressive and will cause death within six months (or 12 months for a neurodegenerative disease)</p></li>
<li><p>be acting voluntarily and not because of pressure or duress</p></li>
<li><p>be experiencing intolerable suffering </p></li>
<li><p>must have lived in NSW for 12 months before their first request for voluntary assisted dying, and</p></li>
<li><p>must be an Australian citizen, permanent resident or a resident of Australia for three years or more.</p></li>
</ul>
<p>As with other states, there is a rigorous request and assessment process. A person must make three requests, and be assessed as eligible by two senior doctors who have completed mandatory training. </p>
<p>After the person has been assessed as eligible, the bill requires one of these senior doctors (the “coordinating” doctor) to apply to the Voluntary Assisted Dying Board for authorisation to proceed.</p>
<p>The bill permits registered health practitioners (doctors, nurses and others) to conscientiously object to participation, a feature of other Australian voluntary assisted dying legislation.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"943365127448928258"}"></div></p>
<p>The bill also regulates the extent to which individual institutions can hinder access to voluntary assisted dying, for instance, by requiring institutions to allow access to voluntary assisted dying in certain situations. This aspect is also a feature of South Australian and Queensland laws. </p>
<p>Consistent with other states, the Voluntary Assisted Dying Board will monitor how the law operates.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-will-be-debated-in-nsw-parliament-this-week-heres-what-to-expect-169468">Voluntary assisted dying will be debated in NSW parliament this week. Here's what to expect</a>
</strong>
</em>
</p>
<hr>
<h2>What happens next?</h2>
<p>The next step is for MPs to consider the bill in detail. </p>
<p>Judging by the experience of other states, we can expect an onslaught of proposed amendments. Indeed, this has already started, with amendments debated until late last night.</p>
<p>Amendments will likely involve adding new safeguards. In Queensland, for example, proposed amendments included making a psychiatric assessment of someone’s capacity mandatory as part of the eligibility assessment, a requirement for one of the doctors to be a specialist in the person’s illness, and a requirement for a consultation with a palliative care specialist. These amendments were ultimately rejected.</p>
<p>Amendments that introduce more safeguards raise significant barriers to patients accessing voluntary assisted dying. Considered together, the above proposed amendments would have added three new specialist health practitioners to the process, each needing to be available in the person’s location and not have a conscientious objection. The law would have been unworkable.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1463947303148941316"}"></div></p>
<p>It is also important to consider the amendments in the context of the bill as a whole. </p>
<p>The NSW bill is narrow and conservative (like the other Australian models) with extensive procedural safeguards. </p>
<p>The bill currently requires two independent assessments of a person’s capacity to request voluntary assisted dying, by doctors who will be trained on their additional legal duties under the bill. Doctors are also required to refer to an expert if they are unsure about the person’s capacity. When considered in this context, a mandatory psychiatric assessment is unnecessary.</p>
<p>Caution is needed as this last minute “piling on” of safeguards is risky. Amendments would be “add ons” to an established model and run the risk of introducing unintended consequences. They could also make the law unwieldy, incoherent and even unworkable.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/one-year-of-voluntary-assisted-dying-in-victoria-400-have-registered-despite-obstacles-141054">One year of voluntary assisted dying in Victoria: 400 have registered, despite obstacles</a>
</strong>
</em>
</p>
<hr>
<h2>NSW can learn from other jurisdictions</h2>
<p>As NSW is the last state in Australia to be passing such legislation, its MPs have the benefit of multiple parliamentary committees, expert panels and extended parliamentary debates in the other states. </p>
<p>The issues likely to be raised in amendments will not be new. Every other state has already considered, debated and resolved how best to deal with them; this is reflected in the current bill.</p>
<p>MPs in NSW also have the benefit of research on Victoria’s regime, which has been in operation for more than two years. This <a href="https://theconversation.com/victorias-voluntary-assisted-dying-scheme-is-challenging-and-complicated-some-people-die-while-they-wait-162094">reveals</a> participating doctors do not have concerns about safety. Reports from Victoria’s Voluntary Assisted Dying Review Board also <a href="https://www.bettersafercare.vic.gov.au/publications?f%5B0%5D=agency%3A751&search=voluntary%20assisted%20dying%20review%20board">show</a> only eligible people are receiving assistance to die. </p>
<p>There is therefore a heavy onus on MPs proposing amendments to justify why they are needed.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/victorias-voluntary-assisted-dying-scheme-is-challenging-and-complicated-some-people-die-while-they-wait-162094">Victoria's voluntary assisted dying scheme is challenging and complicated. Some people die while they wait</a>
</strong>
</em>
</p>
<hr>
<h2>What should the amendments look like?</h2>
<p>We challenge MPs proposing amendments to answer two questions. </p>
<p>First, what is the new problem the amendments are trying to solve that is not already addressed well? Second, because this law is about terminally-ill patients, what impact would any amendments have on their ability to access voluntary assisted dying?</p>
<p>If the evidence from Victoria is these laws are already safe, how would additional amendments making patient access even harder improve this bill?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/in-places-where-its-legal-how-many-people-are-ending-their-lives-using-euthanasia-73755">In places where it's legal, how many people are ending their lives using euthanasia?</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/172600/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lindy Willmott receives or has received funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and State Governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, she (with colleagues) has been engaged by the Victorian and Western Australian Governments to design and provide the legislatively-mandated training for doctors involved in voluntary assisted dying in those States. She (with Ben White) has also developed a model Bill for voluntary assisted dying for parliaments to consider. </span></em></p><p class="fine-print"><em><span>Ben White receives funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and State Governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, he (with colleagues) has been engaged by the Victorian and Western Australian Governments to design and provide the legislatively-mandated training for doctors involved in voluntary assisted dying in those States. He (with Lindy Willmott) has also developed a model Bill for voluntary assisted dying for parliaments to consider. Ben White is a recipient of an Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian Government.</span></em></p>Multiple amendments could make the law unwieldy, incoherent and even unworkable.Lindy Willmott, Professor of Law, Australian Centre for Health Law Research, Queensland University of Technology, Queensland University of TechnologyBen White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1694682021-10-12T04:57:51Z2021-10-12T04:57:51ZVoluntary assisted dying will be debated in NSW parliament this week. Here’s what to expect<figure><img src="https://images.theconversation.com/files/425842/original/file-20211012-15-1y0qsht.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/reading-lamps-bedroom-near-bed-289401689">Shutterstock</a></span></figcaption></figure><p>Voluntary assisted dying has been available to eligible Victorians for more than two years, and to Western Australians since July 2021. Laws also passed this year in Tasmania, South Australia and Queensland, with schemes to commence after an implementation period.</p>
<p>On <a href="https://www.9news.com.au/national/euthanasia-voluntary-assisted-dying-bill-nsw-what-you-need-to-know-voting-to-be-close/6c0b66a2-bc56-47c8-9af3-c2c4154cc6ec">Thursday</a>, New South Wales parliament will debate a bill drafted by independent MP Alex Greenwich. It’s still unclear which way the numbers will go, and whether the bill will pass – it’s likely to be a tight vote. </p>
<p>So how does this bill compare with other state laws? And what should voting MPs take into account?</p>
<h2>How is it similar to other state laws?</h2>
<p>Overall, the NSW bill reflects the broad Australian voluntary assisted dying model. The eligibility criteria, which determine who can access the scheme, are strict, and note the person must have:</p>
<ul>
<li>decision-making capacity</li>
<li>a condition that is advanced, progressive and will cause death within six months (or 12 months for a neurodegenerative disease), and which causes intolerable suffering.</li>
</ul>
<p>The request and assessment process also largely reflects laws of other states, including that the person must make three requests, and be assessed as eligible by two senior doctors who have completed mandatory training. </p>
<p>After the patient is assessed as eligible, the NSW bill requires the doctor to apply to the Voluntary Assisted Dying Board for authorisation to proceed. This requirement, which <a href="https://eprints.qut.edu.au/210873/">we argue</a> delays the process without adding any further safeguard, is also contained in the Victorian, Tasmanian and South Australian legislation. </p>
<figure class="align-center ">
<img alt="Old man sitting on a park bench." src="https://images.theconversation.com/files/425845/original/file-20211012-16-yzjes4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/425845/original/file-20211012-16-yzjes4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/425845/original/file-20211012-16-yzjes4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/425845/original/file-20211012-16-yzjes4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/425845/original/file-20211012-16-yzjes4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/425845/original/file-20211012-16-yzjes4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/425845/original/file-20211012-16-yzjes4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The doctor must apply for authorisation to proceed.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/old-man-senior-sitting-on-bench-1678154692">Shutterstock</a></span>
</figcaption>
</figure>
<p>The NSW bill permits health professionals to conscientiously object to participation, a feature of all Australian Acts. It also regulates the extent to which institutions can refuse to provide the service. This is also dealt with in the South Australian and Queensland laws. </p>
<p>Consistent with other states, a board will be established to monitor the operation of the NSW Act.</p>
<h2>How is it different to other states?</h2>
<p>The proposed NSW model differs from (most of) the other laws in two main ways. </p>
<p>First, the period between the person’s first and final request for voluntary assisted dying is five days. It’s nine days in most of the other states, though it’s shorter in Tasmania. </p>
<p>This period may have been shortened in light of <a href="https://theconversation.com/victorias-voluntary-assisted-dying-scheme-is-challenging-and-complicated-some-people-die-while-they-wait-162094">emerging evidence from Victoria</a> that patients sometimes die during the process. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/victorias-voluntary-assisted-dying-scheme-is-challenging-and-complicated-some-people-die-while-they-wait-162094">Victoria's voluntary assisted dying scheme is challenging and complicated. Some people die while they wait</a>
</strong>
</em>
</p>
<hr>
<p>The second difference is the patient is able to choose between self-administration (where they consume the substance themselves) and practitioner administration (where the doctor administers the substance). </p>
<p>In other states, self-administration is the default method, although the states vary regarding when practitioner administration is permitted. </p>
<h2>What happened recently in Queensland?</h2>
<p>If the recent Queensland experience is anything to go by, the NSW debate will be calm and measured and, for some MPs, informed by the <a href="https://theconversation.com/victorias-voluntary-assisted-dying-scheme-is-challenging-and-complicated-some-people-die-while-they-wait-162094">emerging body of evidence</a> on how the scheme has been operating in Victoria to date. </p>
<p>Queensland passed the legislation by a majority of 61:30 after a debate over three days. Two issues were prominent: </p>
<ol>
<li><p>the need for greater funding for palliative care (for which there was unanimous support)</p></li>
<li><p>the extent to which the Queensland public wanted choice at the end of life. </p></li>
</ol>
<p>The argument that vulnerable cohorts will disproportionately seek voluntary assisted dying was raised, but did not feature prominently – perhaps because this claim is <a href="https://pubmed.ncbi.nlm.nih.gov/27380345/">not supported by the evidence</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/voluntary-assisted-dying-could-soon-be-legal-in-queensland-heres-how-its-bill-differs-from-other-states-161092">Voluntary assisted dying could soon be legal in Queensland. Here's how its bill differs from other states</a>
</strong>
</em>
</p>
<hr>
<p>In voting against the bill, Queensland MP Andrew Powell declared his Christian <a href="https://documents.parliament.qld.gov.au/events/han/2021/2021_09_14_WEEKLY.pdf">beliefs influenced his decision</a>, but said “it pains me to disappoint many in my electorate”. </p>
<p>While Mr Powell is to be commended for his transparency, he chose his own religious convictions to guide his vote, rather than seeking to reflect the values of the majority in his electorate. </p>
<h2>How is the debate likely to play out in NSW?</h2>
<p>Voluntary assisted dying has been debated in NSW on multiple occasions <a href="https://eprints.qut.edu.au/95429/">between 1997 and 2017</a>. The Greens initiated most bills, though the 2017 Bill – which lost by only one vote in the Legislative Council – was introduced by Nationals MP Trevor Khan.</p>
<p>This time the debate will occur in an unusual political environment. New premier Dominic Perrottet describes himself as a practising Catholic and opposes voluntary assisted dying. Deputy premier <a href="https://www.lithgowmercury.com.au/story/4419541/toole-to-oppose-assisted-dying-bill/">Paul Toole</a> opposed the previous voluntary assisted dying bill that was debated in NSW and <a href="https://www.skynews.com.au/australia-news/politics/i-dont-support-voluntary-assisted-dying-chris-minns/video/99fd6d1947e5a170a87b084ea25f6974">Labor leader Chris Minns</a> also opposes voluntary assisted dying.</p>
<p>Perrottet will allow a conscience vote, as has been the convention for such bills in Australia for more than 20 years.</p>
<p>The NSW bill will be introduced by an independent, but has <a href="https://www.sbs.com.au/news/voluntary-assisted-dying-bill-to-be-introduced-to-nsw-parliament-his-week/2457c131-7dd0-4435-a136-8abcd795f99a">around 30 signatories</a>, including government and cross-bench members. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/factcheck-qanda-do-80-of-australians-and-up-to-70-of-catholics-and-anglicans-support-euthanasia-laws-76079">FactCheck Q&A: do 80% of Australians and up to 70% of Catholics and Anglicans support euthanasia laws?</a>
</strong>
</em>
</p>
<hr>
<p>MPs should rightly consider a range of factors during this debate, including how the bill <a href="https://eprints.qut.edu.au/200646/">achieves its policy objectives</a> and how the <a href="https://eprints.qut.edu.au/212268/1/Voluntary_assisted_dying_research_policy_briefing_White_and_Willmott_Aug_2021_WEB.pdf">many safeguards will operate</a>. </p>
<p>But MPs must also be transparent about the <a href="https://theconversation.com/as-victorian-mps-debate-assisted-dying-it-is-vital-they-examine-the-evidence-not-just-the-rhetoric-84195">values that guide their decision</a>. Does their vote reflect their own values, or are they seeking to reflect the views of the majority of their constituents?</p>
<p><em>Update: This article was amended after publication to clarify deputy premier Paul Toole opposed the previous bill that was debated in NSW.</em></p><img src="https://counter.theconversation.com/content/169468/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lindy Willmott has received funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and State Governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, she (with colleagues) has been engaged by the Victorian and Western Australian Governments to design and provide the legislatively-mandated training for doctors involved in voluntary assisted dying in those States. She (with Ben White) has also developed a model Bill for voluntary assisted dying for parliaments to consider. Lindy Willmott is a former member of the board of Palliative Care Australia.</span></em></p><p class="fine-print"><em><span>Ben White receives funding from the Australian Research Council, the National Health and Medical Research Council and Commonwealth and State Governments for research and training about the law, policy and practice relating to end-of-life care. In relation to voluntary assisted dying, he (with colleagues) has been engaged by the Victorian and Western Australian Governments to design and provide the legislatively-mandated training for doctors involved in voluntary assisted dying in those States. He (with Lindy Willmott) has also developed a model Bill for voluntary assisted dying for parliaments to consider. Ben White is a recipient of an Australian Research Council Future Fellowship (project number FT190100410: Enhancing End-of-Life Decision-Making: Optimal Regulation of Voluntary Assisted Dying) funded by the Australian Government.</span></em></p>The proposed NSW legislation is similar to other states, including replicating a key flaw.Lindy Willmott, Professor of Law, Australian Centre for Health Law Research, Queensland University of Technology, Queensland University of TechnologyBen White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1649252021-07-26T19:24:27Z2021-07-26T19:24:27ZWhat is the HIPAA Privacy Rule? A health law scholar explains<figure><img src="https://images.theconversation.com/files/412536/original/file-20210721-15-v35b38.jpg?ixlib=rb-1.1.0&rect=46%2C0%2C5200%2C3456&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">HIPAA allows you to control disclosure of certain types of personal health information.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/medical-records-new-and-old-royalty-free-image/92959399?adppopup=true">Heath Korvola/DigitalVision via Getty Images</a></span></figcaption></figure><p>The <a href="https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html">Health Insurance Portability and Accountability Act’s Privacy Rule</a> is a federal law prohibiting <a href="https://www.hhs.gov/hipaa/for-professionals/covered-entities/index.html">health care providers, businesses and the people working with them</a> – including administrative staff, laboratories, pharmacies, health insurers and so on – from disclosing your health information without your permission.</p>
<p>When people talk about HIPAA, they typically refer to the <a href="https://www.ncbi.nlm.nih.gov/books/NBK9576/">Privacy Rule</a> provision established in 2003, which is just one part of a broader law initially passed by Congress in 1996. The Privacy Rule came into force after tennis star <a href="https://www.nytimes.com/1992/04/09/sports/an-emotional-ashe-says-that-he-has-aids.html">Arthur Ashe’s HIV status was publicly revealed</a> and country music star <a href="http://www.cmt.com/news/1475729/medical-worker-sentenced-over-wynette-medical-records/">Tammy Wynette’s health records were sold</a> to tabloids. People were starting to worry about genetic privacy. And Congress recognized that the internet would make it easier for health care privacy breaches to occur.</p>
<h2>Why the HIPAA Privacy Rule matters</h2>
<p>The HIPAA Privacy Rule gives you the right to control your health information disclosures so you can tell your health care provider what to share. If you don’t want to share some of your health information with your family members, you can tell your health care provider to withhold that information from them.</p>
<p>However, HIPAA only protects health care information held by specific kinds of health care providers. For example, health care data on your Apple Watch or Fitbit is not usually covered by HIPAA. Genetic data you enter on websites like Ancestry.com is also not covered by HIPAA. Other laws or agreements like the <a href="https://theconversation.com/nobody-reads-privacy-policies-heres-how-to-fix-that-81932">privacy disclosures required on many apps</a> may protect that information, but HIPAA does not.</p>
<p>Sometimes people try to use HIPAA as an excuse for actions it doesn’t actually cover. For instance, some people who refused to comply with coronavirus-related mask rules in stores asserted that they <a href="https://www.usatoday.com/story/news/factcheck/2020/07/19/fact-check-asking-face-masks-wont-violate-hipaa-4th-amendment/5430339002/">couldn’t be asked to explain why because of HIPAA protections</a>. But that’s not how this privacy law works: It’s legal for someone to ask you about your vaccination status. And anyone can provide information about their own vaccination status (or any personal health information) without violating HIPAA.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1417828273946509314"}"></div></p>
<h2>Are there exceptions to the HIPAA Privacy Rule?</h2>
<p><a href="https://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.html">Certain exceptions</a> to HIPAA’s nondisclosure requirements allow covered health care providers to disclose patient information to help treat another person, protect public health and aid in certain law enforcement investigations.</p>
<p>During a pandemic, for instance, public health departments can provide information about how many people have tested positive for a disease, but they cannot mention specific names to the general public unless it’s necessary to alert particular people that they may have been exposed. This is because HIPAA and other privacy laws require them not to release any more information than is needed to keep people safe.</p>
<p><em>Portions of this article originally appeared in a <a href="https://theconversation.com/what-is-hipaa-5-questions-answered-about-the-medical-privacy-law-that-protects-trumps-test-results-and-yours-147805">previous article published on Oct. 15, 2020</a>.</em></p>
<p><em>The Conversation U.S. publishes short, accessible explanations of newsworthy subjects by academics in their areas of expertise.</em></p><img src="https://counter.theconversation.com/content/164925/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Margaret Riley does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While the HIPAA Privacy Rule prevents health care providers from sharing your health information without your permission, it doesn’t prevent other people from asking you about it.Margaret Riley, Professor of Law, Public Health Sciences, and Public Policy, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1478052020-10-15T12:38:23Z2020-10-15T12:38:23ZWhat is HIPAA? 5 questions answered about the medical privacy law that protects Trump’s test results and yours<figure><img src="https://images.theconversation.com/files/363533/original/file-20201014-21-q2f1h4.jpg?ixlib=rb-1.1.0&rect=473%2C0%2C6875%2C4912&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Doctors can share your medical information, with your permission.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/bad-news-royalty-free-image/486418295">sturti/E+ via Getty Images</a></span></figcaption></figure><p><em>When President Trump was hospitalized with COVID-19, his doctor pointed to “<a href="https://www.cnn.com/2020/10/07/politics/hipaa-trump-conley/index.html">HIPAA rules and regulations</a>” as the reason he couldn’t speak more freely about Trump’s condition. HIPAA is a medical privacy law, but people often misunderstand what it does and doesn’t do.</em></p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1313205926309093378"}"></div></p>
<p><em>Margaret Riley is a <a href="https://www.law.virginia.edu/faculty/profile/mf9c/1202931">law professor at the University of Virginia</a> who specializes in health law. She spends a lot of time teaching future lawyers and medical professionals how medical privacy laws work. Here are the basics.</em></p>
<h2>1. What is HIPAA and why did Congress pass it?</h2>
<p>The <a href="https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html">Health Insurance Portability and Accountability Act’s</a> Privacy Rule is a federal law that <a href="https://www.hipaajournal.com/when-was-hipaa-enacted/">went into force in 2003</a>. The need for such a law had been underscored when tennis star <a href="https://www.nytimes.com/1992/04/09/sports/an-emotional-ashe-says-that-he-has-aids.html">Arthur Ashe’s HIV status was revealed publicly</a> and country music star <a href="http://www.cmt.com/news/1475729/medical-worker-sentenced-over-wynette-medical-records/">Tammy Wynette’s health records were sold</a> to tabloids for a few thousand dollars. People were also starting to worry about genetic privacy. And Congress recognized that the internet would make it easier for health care privacy breaches to occur.</p>
<p>The law prohibits health care providers and businesses and people working with them – including administrative staff, laboratories, pharmacies, health insurers and so on – from disclosing your health information without your permission. That includes information about your COVID-19 symptoms and test results – though there are some exceptions.</p>
<h2>2. Is all my medical info protected by HIPAA?</h2>
<p>No, HIPAA protects only health care information that is held by specific kinds of health care providers. For example, health care data that may be on your Apple Watch or Fitbit are usually not covered by HIPAA. Similarly, genetic data you enter on websites like Ancestry.com are not covered by HIPAA.</p>
<p>Even some apps that do things like help you maintain your blood sugar may not be covered by HIPAA if you aren’t using them at the direction of your health care provider. Other laws or agreements like the privacy disclosures required on many apps (although <a href="https://theconversation.com/nobody-reads-privacy-policies-heres-how-to-fix-that-81932">many people don’t read them</a>) may protect that information, but HIPAA does not.</p>
<p>Employers are generally not covered health providers, so HIPAA does not apply to them. If necessary to protect others, your work could share that you have an illness. That said, other laws like the Americans with Disabilities Act may prevent your employer from disclosing identifiable health information about you that you may have shared with them.</p>
<h2>3. Who can disclose what under HIPAA?</h2>
<p>HIPAA gives you the right to control your health information disclosures so you can tell your health care provider what to share. </p>
<p>For example, you may be willing to have your health care provider share some of your health information with family members, but you might not want to share all of it; you can tell your health care provider not to share any stigmatizing information or procedures that your family might not know about. You need to be very clear with your health care provider if you want to exclude some information. Some information, like psychotherapy notes or giving your data to marketing companies, requires written authorization. </p>
<p>Sometimes people try to use HIPAA as an excuse for actions that it doesn’t in fact cover. In 2020, for instance, some people confronted with rules about wearing masks in stores assert that they don’t need to wear one and <a href="https://www.usatoday.com/story/news/factcheck/2020/07/19/fact-check-asking-face-masks-wont-violate-hipaa-4th-amendment/5430339002/">don’t need to explain why because of HIPAA</a>. That’s not actually how this privacy law works.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/363537/original/file-20201014-21-1mxfqp8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="exterior of a medical center with mask sign" src="https://images.theconversation.com/files/363537/original/file-20201014-21-1mxfqp8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/363537/original/file-20201014-21-1mxfqp8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/363537/original/file-20201014-21-1mxfqp8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/363537/original/file-20201014-21-1mxfqp8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/363537/original/file-20201014-21-1mxfqp8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/363537/original/file-20201014-21-1mxfqp8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/363537/original/file-20201014-21-1mxfqp8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Even during the pandemic, your personal medical information is largely protected.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/photo/bad-news-royalty-free-image/486418295">Spencer Plat/Getty Images News via Getty Images</a></span>
</figcaption>
</figure>
<h2>4. Could my health care provider be required to disclose any of my info without my permission?</h2>
<p><a href="https://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.html">There are exceptions</a> to HIPAA’s nondisclosure requirements. For example, HIPAA regulations allow covered health care providers to disclose patient information to help treat another person, to protect public health and for certain law enforcement purposes.</p>
<p>There are additional exceptions that apply during a pandemic. For instance, while health departments may have access to information about people in their district who’ve tested positive for COVID-19, HIPAA and other privacy laws require them not to release any more information than is needed to keep people safe. So, health departments will provide information about how many people have tested positive and how many people are hospitalized, but they won’t release any names to the general public. Health department contact tracers may reveal identities of individuals if it’s really necessary to alert specific people that they may have been exposed.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p>
<p>HIPAA covers President Trump just as it does you and me. There may be good reasons that people want to know more about the president’s health, but his health providers can provide the public only with information about his health that he has allowed them to share. They shouldn’t say anything that isn’t true, but they can certainly omit information.</p>
<h2>5. What if someone violates my rights under HIPAA?</h2>
<p>Only the government can bring a claim if an individual’s protected health information is breached. So to bring a federal claim, you would need to work with the Office of Civil Rights at the U.S. Department of Health and Human Services. You may be able to sue under state law and use the breach of your HIPAA rights as evidence.</p>
<p>Some people who are particularly worried about their privacy may ask health care providers to sign a nondisclosure agreement that gives them additional claims and the right to sue directly if there is a breach.</p><img src="https://counter.theconversation.com/content/147805/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Margaret Riley does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A health law expert explains what the regulation does and doesn’t protect.Margaret Riley, Professor of Law, Public Health Sciences, and Public Policy, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1355342020-04-13T17:19:46Z2020-04-13T17:19:46ZCoronavirus triage protocols: Hard choices over ventilator shortages shouldn’t put doctors at legal risk<figure><img src="https://images.theconversation.com/files/326704/original/file-20200409-109213-89d2og.jpg?ixlib=rb-1.1.0&rect=75%2C501%2C3519%2C2031&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A health-care worker in protective gear at a COVID-19 assessment centre at the Scarborough Hospital in Scarborough, Ont., on April 3, 2020. </span> <span class="attribution"><span class="source">THE CANADIAN PRESS/Nathan Denette</span></span></figcaption></figure><p>Across Canada, the coronavirus pandemic is increasing the demand for <a href="https://www.cbc.ca/news/canada/toronto/covid-19-icu-beds-1.5521394">already scarce critical care resources</a>. In the coming weeks, there is a very real chance that there <a href="https://www.covid-19-mc.ca">won’t be enough ventilators and critical care beds for everyone who needs them</a>. Difficult decisions will have to be made about who gets what. Sick individuals who might survive if put on a ventilator may be denied access to one, or even removed from one they were already on, in order to save someone else.</p>
<p>In anticipation of this, <a href="https://www.thestar.com/news/canada/2020/03/29/ontario-developing-last-resort-guidelines-on-which-patients-to-prioritize-if-hospitals-are-overwhelmed-by-critical-covid-19-cases.html">provincial and territorial governments now face the challenge of authorizing triage protocols</a>: documents that spell out the nature and process of allocation decisions. The normal rules for allocating resources just <a href="https://www.ctvnews.ca/health/coronavirus/who-gets-a-ventilator-in-the-covid-19-crisis-1.4876069">don’t work during a pandemic</a>. When critical care units can no longer admit everyone who wants and might benefit from critical care, new rules must be set. Who lives and who dies? Who decides?</p>
<h2>Triage protocols vs. standards of care</h2>
<p>The best case scenario is that these protocols will not need to be introduced, and it will be possible to meet all clinical needs through mobilization, management and sharing of resources. However, given the uncertainty about the future spread of the virus, we should hope for the best but prepare for the worst. Which means provincial and territorial governments should prepare critical care triage protocols, as <a href="https://www.thestar.com/news/canada/2020/03/29/ontario-developing-last-resort-guidelines-on-which-patients-to-prioritize-if-hospitals-are-overwhelmed-by-critical-covid-19-cases.html">Ontario has done</a>.</p>
<p>However, for these protocols to work and not add more stress to our already over-stressed health-care providers, the authorities — including governments, prosecutorial services and professional regulatory bodies — must take steps to protect health-care providers. Authorities must ensure that health-care providers who follow these protocols will not face criminal or civil liability, or discipline by regulatory colleges, and ensure that health-care providers are aware of this.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/326707/original/file-20200409-115270-1eaajjx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Medical staffers work in the Intensive Care Unit of the Maria Pia Hospital in Turin, Italy on April 7, 2020.</span>
<span class="attribution"><span class="source">(Marco Alpozzi/LaPresse via AP)</span></span>
</figcaption>
</figure>
<p>The problem is that critical care triage protocols direct health-care providers to <a href="https://doi.org/10.1056/NEJMsb2005114">deviate from their normal duties and standards of care</a>. They may direct providers to prioritize based on survival of the most people, or first-come-first-served or lottery. Furthermore, protocols may direct providers to discriminate based on grounds that are usually prohibited <a href="https://dx.doi.org/10.1503%2Fcmaj.060911">such as age</a>. </p>
<h2>Liability risks</h2>
<p>Normally, if a physician removes a ventilator from a patient who might survive, with neither the patient’s nor their substitute decision-maker’s consent, they might be charged with <a href="https://laws-lois.justice.gc.ca/eng/acts/c-46/page-50.html#h-119680">criminal negligence causing death</a>. The patient’s family might <a href="http://canlii.ca/t/j21lm">sue for negligence</a> or claim a breach of <a href="https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/13290/index.do">provincial consent legislation</a>. The province’s college of physicians and surgeons might discipline the physician for violating their <a href="https://www.cpso.on.ca/Physicians/Policies-Guidance/Policies/Planning-for-and-Providing-Quality-End-of-Life-Car">duties to the patient and standards of practice</a>. </p>
<p>However, a critical care triage protocol may direct a physician to do just that.</p>
<p>It’s possible that a court would not convict a health-care provider on criminal charges or find them civilly liable. It’s possible that a regulatory college would not find that a health-care provider breached professional standards. </p>
<p>On the other hand, it’s possible that there could be criminal charges, civil lawsuits and disciplinary hearings. It’s possible there could be liability and sanctions. Thus, these triage protocols can create both real and <a href="https://twitter.com/jesshwprince/status/1247010464380289026">perceived risks for health-care providers</a>. </p>
<h2>Protection and reassurance for providers</h2>
<p>Fortunately, the authorities can protect providers from both liability and regulatory sanction, which can reassure providers. I will take Nova Scotia as an example; however, it is worth noting that the same or similar steps are available in other provinces and territories. </p>
<p>For criminal liability, the Nova Scotia director of public prosecutions could issue a directive indicating that criminal charges will not be prosecuted if health-care providers comply with the triage protocol and professional standards of their regulatory body. There are precedents for this; the <a href="https://mjlhmcgill.files.wordpress.com/2017/07/mjlh-vol-vi-no-2-downiewhite.pdf">attorney general of British Columbia</a> and the <a href="https://novascotia.ca/pps/publications/ca_manual/Physician-Assisted-Death.pdf">Nova Scotia director of public prosecutions</a> have previously issued such directives about end-of-life care. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=409&fit=crop&dpr=1 600w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=409&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=409&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=514&fit=crop&dpr=1 754w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=514&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/326708/original/file-20200409-86219-1p0b8dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=514&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">An engineer attaches the breathing tubes to a prototype of an emergency response ventilator in Vancouver on March 27, 2020.</span>
<span class="attribution"><span class="source">THE CANADIAN PRESS/Jonathan Hayward</span></span>
</figcaption>
</figure>
<p>Furthermore, the federal government could publish a guidance document indicating its endorsement of a particular triage protocol or of triage protocols in general. While this would not have the force of law, it could be used in court should there be a need to defend against criminal charges laid against a practitioner for complying with their provincial or territorial triage protocol.</p>
<p>For civil liability, the minister of municipal affairs could approve a Nova Scotia critical care triage protocol as an emergency management plan under the <a href="https://nslegislature.ca/sites/default/files/legc/statutes/emergency%20management.pdf">Emergency Management Act</a>. This would ensure, under the liability provisions of that act, that health-care providers are protected from any civil liability for actions taken that comply with the protocol.</p>
<p>For professional sanction, the regulatory bodies (such as colleges of physicians and surgeons) could issue <a href="https://cpsns.ns.ca/professional-standard-regarding-medical-assistance-in-dying-for-nova-scotian-physicians/">professional standards</a> stating that health-care providers must follow a triggered protocol and that health-care providers will not be subject to sanction if they do so.</p>
<p>If these steps are both taken and publicized by authorities and <a href="https://www.cmpa-acpm.ca/en/home">insurers</a> alike, health-care providers will be able to move forward without fear, safe in the knowledge that they are protected. This will allow health-care providers to follow triage protocols, which are established in accordance with the values and goals that society believes should guide the allocation of scarce resources during the present crisis.</p><img src="https://counter.theconversation.com/content/135534/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jocelyn Downie does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If COVID-19 causes a ventilator shortage in hospitals, triage protocols will dictate who gets life-saving treatment. Health-care workers need protection from liability for following those protocols.Jocelyn Downie, James Palmer Chair in Public Policy and Law, University Research Professor, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/941712018-04-16T20:48:22Z2018-04-16T20:48:22ZWith health assuming its rightful place in planning, here are 3 key lessons from NSW<figure><img src="https://images.theconversation.com/files/214466/original/file-20180412-549-1xplikd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Health objectives are at last being integrated into all levels of planning in New South Wales, from cities and towns to local places and buildings.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/sydney-australia-awesome-aerial-view-helicopter-417392848?src=Fy2hIdXvkN3QpJwf9ivcBQ-1-85">pisaphotography/Shutterstock</a></span></figcaption></figure><p>The way cities are designed and managed has big <a href="https://www.sciencedirect.com/science/article/pii/S0140673616300666">impacts on our health</a>. While Australia is considered a world leader in research on health and cities, nationally our planning policies <a href="http://cur.org.au/project/national-liveability-report/">remain underdeveloped</a> relative to our knowledge base. To remedy this, healthy planning advocates need to better understand how urban planning systems can be influenced. </p>
<p>Several recent, mostly positive, experiences in the New South Wales (NSW) planning system provide insights into this process. Each represents a milestone for land-use planning in this state given extensive reforms have been on and off the table for the past decade.</p>
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<p>
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<strong>
Read more:
<a href="https://theconversation.com/the-mysterious-disappearance-of-health-from-new-south-wales-planning-laws-72098">The mysterious disappearance of health from New South Wales planning laws</a>
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<p>The connections between city planning and health are many and varied. Key aspects include environmental sustainability, pollution risks and liveable places. Being liveable means having access to healthy food, nearby employment and services, and opportunities for active lifestyles. </p>
<p>These issues are increasingly important given projected population growth pressures on urban infrastructure. Other areas facing similar pressures, in Australia and overseas, might wish to take note of what has happened in NSW.</p>
<p>Since 2014 we have used political science <a href="http://bmjopen.bmj.com/content/5/7/e008822.short">to investigate</a> attempts in NSW to include health in <a href="https://academic.oup.com/heapro/advance-article/doi/10.1093/heapro/dax055/4104494?searchresult=1">legislative reform</a>, <a href="http://sydney.edu.au/halloran/research/projects2016.shtml">strategic city planning</a> and major <a href="https://www.sciencedirect.com/science/article/pii/S0195925517301804?via%3Dihub">urban infrastructure assessments</a>. As well as scrutinising relevant policies and associated documentation, we have interviewed more than 50 stakeholders. This has provided insights into how and why recent developments came about. </p>
<h2>How has NSW brought health into planning?</h2>
<p>Healthy planning has always had champions in NSW, but really hit its stride during a major legislative reform exercise that began in 2011. This came to a head in November 2017, when the state parliament <a href="https://www.legislation.nsw.gov.au/#/view/act/2017/60/full">passed amendments</a> to the Environmental Planning and Assessment Act 1979. </p>
<p>This legislation now lists two objects of direct importance for health:</p>
<ul>
<li>protection of the health and safety of occupants of buildings</li>
<li>promotion of good design and amenity of the built environment. </li>
</ul>
<p>Also in 2017, the NSW Office of the Government Architect produced a policy of “design-led planning”. Known as “<a href="http://www.governmentarchitect.nsw.gov.au/resources/ga/media/files/ga/strategy-documents/better-placed-a-strategic-design-policy-for-the-built-environment-of-new-south-wales-2017.pdf">Better Placed</a>”, this policy positions health as a top priority. It embeds health within design processes, methods and outcomes for different levels of planning from cities and towns to places and buildings. </p>
<p>In our view, Better Placed is an exemplary policy in demonstrating the importance of urban planning for health.</p>
<p>In another positive development, the Greater Sydney Commission recently released <a href="https://www.greater.sydney/strategic-planning">Metropolitan and District Plans</a> that position health as a core objective (number 7). The plans consistently refer to health across the central themes of liveability, productivity and sustainability. </p>
<p>To their credit, the NSW government and the commission have developed plans concurrently with transport and infrastructure and <a href="https://future.transport.nsw.gov.au/">released them together</a>. The <a href="http://www.thelancet.com/series/urban-design">evidence</a> suggests this integration should have public health benefits. The emphasis across the commission, transport and infrastructure plans on creating a liveable and accessible city increases our confidence in this outcome.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-healthy-approach-how-to-turn-what-we-know-about-liveable-cities-into-public-policy-50185">A healthy approach: how to turn what we know about liveable cities into public policy</a>
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<h2>Three key factors in making health a priority</h2>
<p>Our research suggests three crucial factors in elevating the status of health in planning. </p>
<p><strong>1.</strong> A core group of non-government, government and academic representatives has led health advocacy for over a decade. The group’s messages and activities intentionally focused on collaboration across agencies in the public interest. </p>
<p>This advocacy has grown in sophistication since the early days of making submissions about “health” issues that risked being treated as <a href="https://www.sciencedirect.com/science/article/pii/S0277953615302379?via%3Dihub">peripheral</a> to the main game of planning (infrastructure, for instance).</p>
<p>Within government, NSW Health (both state and local departments) has developed an increasingly effective response to urban planning opportunities for promoting and protecting health.</p>
<p><strong>2.</strong> The previous minister for planning (Rob Stokes), the Office of the Government Architect and the Greater Sydney Commission have each provided vital policy mechanisms for including health. This illustrates the importance of particular agents in the right place at the right time.</p>
<p>The minister was essential in establishing the commission. This effectively created a respectful distance between strategic planning and the “economics trumps all” planning agenda seen in some policy environments. </p>
<p>The “design-led planning” emphasis came about when Stokes was planning minister. The starring role given to health in Better Placed gives healthy planning advocates, for the time being, unprecedented opportunity to influence strategies and plans.</p>
<p><strong>3.</strong> Delivery now requires close attention, as these positive shifts alone have limited power. For instance, the commission’s plans emphasise collaborative infrastructure delivery to create an equitable city. Infrastructure has profound health impacts, costs and benefits. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/transport-access-is-good-for-new-housing-but-beware-the-pollution-77790">Transport access is good for new housing, but beware the pollution</a>
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</em>
</p>
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<p>Shifting infrastructure funding to benefit the city’s West will be the core fault line for delivering on promises of equitable infrastructure provision. However, infrastructure project funding and appraisal are crying out for reform. Better indicators, transparent analyses to inform options, improved governance arrangements and greater accountability have all been <a href="https://www.pc.gov.au/inquiries/completed/infrastructure/report">identified as required reforms</a>.</p>
<p>The NSW planning system has begun to recognise the importance of urban planning for health. These developments present a tremendous opportunity to influence how healthy public policy can be delivered for the benefit of the whole city.</p><img src="https://counter.theconversation.com/content/94171/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Funding for the research that informed this article was provided from various sources including NSW Health, the NSW Heart Foundation, and the Henry Halloran Trust at the University of Sydney. Patrick Harris receives funding from the Australian National Health and Medical Research Council and the Australian Research Council. He is Deputy Chair of the NSW Branch Executive of the Public Health Association of Australia.</span></em></p><p class="fine-print"><em><span>Elizabeth Harris, Emily Riley, Jennifer L. Kent, and Peter Sainsbury do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The connections between city planning and health are many and varied, but getting health objectives integrated into all aspects of planning in New South Wales has been a long struggle.Patrick Harris, Senior Research Fellow, Menzies Centre for Health Policy, University of SydneyElizabeth Harris, Senior Research Fellow, UNSW SydneyEmily Riley, Research Assistant, University of SydneyJennifer L. Kent, Research Fellow, University of SydneyPeter Sainsbury, Adjunct Associate Professor, South Western Sydney Local Health DistrictLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/845842017-09-28T19:05:22Z2017-09-28T19:05:22ZGoogling for a new dentist or therapist? Here’s how to look past the glowing testimonials<figure><img src="https://images.theconversation.com/files/187498/original/file-20170926-32444-njv05f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We use reviews and online testimonials when downloading an app or shopping on eBay. So, why not when choosing a new dentist?</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?src=JdF7vJ43nvBdY4y81UK5hA-1-68">from www.shutterstock.com</a></span></figcaption></figure><p>If you’ve ever <a href="http://jamanetwork.com/journals/jama/article-abstract/182198">searched online</a> for a new dentist or other health professional, you’re certain to find websites with positive testimonials. Then there are the impressive “before and after” photos.</p>
<p>But <a href="http://onlinelibrary.wiley.com/doi/10.1111/adj.12571/full">our recently published research</a> shows not all health professionals are playing by the rules when they market themselves to the public.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/dr-google-probably-isnt-the-worst-place-to-get-your-health-advice-73835">Dr Google probably isn't the worst place to get your health advice</a>
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<p>Our study of dentists shows almost three-quarters were illegally using testimonials on social media to market their practice and almost one in five were using pictures or text likely to create unrealistic expectations of the treatment.</p>
<p>So what are health professionals allowed to claim about the service they provide? And what advice should you rely on?</p>
<h2>What type of health professional are you looking for?</h2>
<p>How health professionals are allowed to market themselves depends mainly on what type of service they provide. The key is whether the practitioner is providing what’s known as a <a href="https://www.ahpra.gov.au/Publications/Advertising-resources/Legislation-guidelines.aspx">regulated health service</a>.</p>
<p><a href="http://www.ahpra.gov.au/National-Boards.aspx">These include</a>: doctors, dentists, pharmacists, psychologists, nurses and midwives, chiropractors, osteopaths, physiotherapists, occupational therapists, optometrists, podiatrists, practitioners of Chinese medicine, radiographers and sonographers, and people who provide specialist health services to Aboriginal and Torres Strait Islander people.</p>
<p>So, if you’re looking for one of these, the following advertising <a href="http://www.ahpra.gov.au/About-AHPRA/What-We-Do/Legislation.aspx">is illegal</a>:</p>
<ul>
<li>false, misleading or deceptive advertising or advertising that’s likely to be misleading or deceptive</li>
<li>advertising that offers a gift, discount or other inducements, unless the advertisement also states the terms and conditions of the offer</li>
<li>using testimonials or reported testimonials</li>
<li>advertising that creates an unreasonable expectation of beneficial treatment, and</li>
<li>advertising that directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.</li>
</ul>
<p>These rules apply to all forms of advertising across different media, including social media.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/187499/original/file-20170926-12134-1cpmh4x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/187499/original/file-20170926-12134-1cpmh4x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/187499/original/file-20170926-12134-1cpmh4x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/187499/original/file-20170926-12134-1cpmh4x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/187499/original/file-20170926-12134-1cpmh4x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/187499/original/file-20170926-12134-1cpmh4x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/187499/original/file-20170926-12134-1cpmh4x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/187499/original/file-20170926-12134-1cpmh4x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Speech pathologists are allowed to include testimonials and reviews to promote themselves, but doctors and pharmacists aren’t.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?src=JdF7vJ43nvBdY4y81UK5hA-1-68">from www.shutterstock.com</a></span>
</figcaption>
</figure>
<p>But there are a whole range of health professionals who aren’t counted as providing a regulated health service. These include optical dispensers, speech and language pathologists, and massage therapists.</p>
<p>So, if you read great testimonials about these, while persuasive, they’re unlikely to be illegal under health-care law. However, they would still be bound by <a href="https://www.accc.gov.au/consumers/misleading-claims-advertising/false-or-misleading-claims">Australian Consumer Law</a>, which prevents misleading or deceptive advertising.</p>
<h2>How about if I leave an online review?</h2>
<p>While the law prohibits providers of a regulated health service from providing testimonials, there’s nothing stopping you from leaving a review on Google or on your own social media page.</p>
<p>But if you leave a review on a doctor or dentist’s practice page or social media account, it’s the health professional who will be breaching the rules; the <a href="https://www.ahpra.gov.au/">regulator</a> expects health professionals to manage the content of their pages.</p>
<p>You would think that most testimonial sections on social media would be disabled, however, this isn’t what our <a href="http://onlinelibrary.wiley.com/doi/10.1111/adj.12571/full">research showed</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/yes-your-doctor-might-google-you-74746">Yes, your doctor might Google you</a>
</strong>
</em>
</p>
<hr>
<p>For bad reviews, you could potentially be sued for <a href="http://www.lawhandbook.org.au/11_02_01_what_is_defamation/">defamation</a> if your post harms the health professional’s reputation. This is an entirely separate section of law, with many caveats, so please take care. A recent case involved a surgeon who <a href="http://www.smh.com.au/nsw/sydney-surgeon-munjed-al-muderis-awarded-480k-over-online-defamation-by-patient-20170608-gwn17a.html">successfully sued a patient for A$480,000</a> after he made defamatory claims online.</p>
<h2>So, what’s the big deal?</h2>
<p>Testimonials and reviews are very common in other aspects of our daily lives. Just think about the last time you downloaded an app, used eBay or booked a holiday online. But what makes health-care so special?</p>
<p>Testimonials and reviews can potentially mislead. For instance, <a href="https://www.ncbi.nlm.nih.gov/pubmed/27279455">one study</a> that looked at YouTube testimonials about dental implants found many testimonials overplayed the positives (better looking and improved function) and downplayed the negatives of treatment (pain relief needed, a temporary solution).</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-to-split-the-good-from-the-bad-in-online-reviews-and-ratings-74986">How to split the good from the bad in online reviews and ratings</a>
</strong>
</em>
</p>
<hr>
<p>Testimonials and reviews might not even be true. Google requires no proof you have visited a health professional before you leave a non-verified review. And a quick search on Google itself reveals many businesses offering to sell positive Google reviews.</p>
<p>Then there are the potentially serious health consequences of choosing the wrong health professional (or the wrong therapy) after reading testimonials and reviews. For instance, there’s nothing to prevent medical graduates with little or no postgraduate training <a href="http://www.dailytelegraph.com.au/news/nsw/cosmetic-surgery-rogue-operators-health-minister-calls-for-investigation/news-story/a5297252f77fd4936cfe358b7140c663">using the title “cosmetic surgeon”</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/call-yourself-a-cosmetic-surgeon-new-guidelines-fix-only-half-the-problem-59078">Call yourself a cosmetic surgeon? New guidelines fix only half the problem</a>
</strong>
</em>
</p>
<hr>
<p>Misleading claims or titles might also affect your ability to consent to treatment; if you don’t have the right information, <a href="http://onlinelibrary.wiley.com/doi/10.1111/adj.12428/full">how can you make an informed decision</a>?</p>
<h2>Where does this leave me?</h2>
<p>There is no one-stop resource for patients to access health advertising that is completely free from bias. So, take claims relating to health professionals with a pinch of salt, including testimonials.</p>
<p>While some people think advertising restrictions stifle public discussion, they’re in place to protect you.</p>
<hr>
<p><em>Update: this article originally stated acupuncturists aren’t counted as providing a regulated health service.</em></p><img src="https://counter.theconversation.com/content/84584/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alexander Holden does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Many of the online testimonials you might read for dentists and other health professional can not only mislead, they can be illegal.Alexander Holden, Lecturer in Dental Ethics, Law and Professionalism, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/846642017-09-27T23:30:49Z2017-09-27T23:30:49ZEgg donors and surrogates need high-quality care<figure><img src="https://images.theconversation.com/files/187876/original/file-20170927-24212-1vu4go3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Egg donors, sperm donors and surrogates are critical participants and patients in the use of reproductive technologies - so why are their rights and heath repeatedly overlooked?</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>Health Canada recently sought public input into new regulations for the use of assisted human reproduction. The consultation process covered everything from in-vitro fertilization (IVF) to egg and sperm donation and surrogacy.</p>
<p><a href="https://www.canada.ca/en/health-canada/programs/consultation-assisted-human-reproduction/document.html#a1">The consultation document</a> prioritizes the health and safety of men and women engaged in <a href="https://global.oup.com/academic/product/family-making-9780199656066?cc=gb&lang=en&">family-making</a> projects using assisted human reproduction. It also prioritizes the health and safety of children born of reproductive technologies. Meanwhile, the interests of those who contribute substantially to family-making — egg donors, sperm donors and surrogates — are repeatedly overlooked.</p>
<p>As researchers and advocates for women’s health, we are concerned about the ongoing failure on the part of Health Canada and others to see egg donors, sperm donors and surrogates as both critical participants and patients in the use of reproductive technologies. We urge policy makers to give due consideration to their health, well-being and interests in the making of public policy on assisted human reproduction.</p>
<h2>A narrow focus</h2>
<p><a href="http://laws-lois.justice.gc.ca/eng/acts/a-13.4/FullText.html">The Assisted Human Reproduction (AHR) Act </a> — the legislation governing the use of human reproductive technologies in Canada — was passed in 2004. As originally drafted, the act includes a number of provisions that require regulations in order for them to come into force. Most of these have never been introduced, including rules about how those donating eggs, sperm and embryos and those who act as surrogates should be paid.</p>
<p>Now, some 13 years later, Health Canada is finally taking the necessary steps to start drafting the missing regulations. An early step in this process has involved limited public consultation on a discussion document titled <em>Toward a Strengthened Assisted Human Reproduction Act: A Consultation with Canadians on Key Policy Proposals</em>. This document provides information about the direction of regulations-to-come in support of the AHR Act and asks the public for input.</p>
<p>An important problem with the discussion document (and the direction of the regulations it outlines) is the narrow focus on those who use assisted reproduction to build a family and those who are born of these technologies. </p>
<p>What about those who assist others with their family-making project? Assisted human reproduction often involves others — including egg donors, sperm donors and surrogates. In the discussion document, their interests are too often overlooked.</p>
<h2>Risks of egg donation</h2>
<p>In the section on “product safety,” for example, the discussion document provides considerable detail about the ways in which eggs and sperm (gametes) should be acquired so as to protect the health and safety of those using assisted reproduction, and of the children born. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/187458/original/file-20170925-22354-19psdkx.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Gamete donors and surogates are repeatedly viewed as mere ‘third parties’ in laws governing assisted reproduction in Canada and globally.</span>
<span class="attribution"><span class="source">(Unsplash/Sean Roy)</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>But what about the health and safety of the gamete providers and the surrogates? The risks associated with egg production, for example, <a href="https://www.ncbi.nlm.nih.gov/pubmed/18681998">are substantial</a>. And there are <a href="https://www.ncbi.nlm.nih.gov/pubmed/19022427">numerous reports</a> that <a href="http://jme.bmj.com/content/early/2016/03/07/medethics-2015-102964">informed consent is lacking</a>, as is <a href="http://www.cbc.ca/player/play/2198380237">adequate follow-up care</a> to address potential health risks such as ovarian hyperstimulation syndrome. </p>
<p>Nowhere does the government discussion document address the health and safety of the women from whom the so-called “products” are obtained.</p>
<h2>‘Third parties’ or vital contributors?</h2>
<p>In another section of the discussion document on the “risk of transmission of disease,” the focus is again narrowly on the would-be-parents and the children conceived. Accordingly, when reproductive material is tested and screened, the would-be parents are to be informed of the tests results so that they can take this information into consideration in making their reproductive choices. </p>
<p>There is no mention, however, of disclosing information about genetic or infectious disease to gamete donors and surrogates. Yet, surely they have an even greater claim on such information that they require to make both health-care and reproductive choices.</p>
<p>This lack of attention to the interests of gamete donors and surrogates has been a problem with the regulation of assisted reproduction in Canada from the beginning. These participants in assisted human reproduction are rarely included in policy consultations and their experiences are rarely studied. </p>
<p>They are typically referred to as “third-parties” in the reproductive process when they are, in fact, primary actors. In these ways they are thought of, and often treated, as nearly extraneous to the family-making projects they enable.</p>
<h2>Women as ‘spare parts’ and ‘walking wombs’</h2>
<p>Scholars in the field of assisted human reproduction (including us), have documented the many ways in which egg donors have come to be thought of as “<a href="http://www.utpjournals.press/doi/abs/10.3138/cjwl.25.2.249">spare parts</a>” rather than patients, and surrogates have long been dismissively thought of as “<a href="http://ca.wiley.com/WileyCDA/WileyTitle/productCd-0745602096.html">walking wombs</a>.”</p>
<p>This Health Canada consultation fails to see gamete donors and surrogates as participants in assisted reproduction, fully deserving of the same high-quality care as those who use the technologies to build their families. This is indicative of a broad and ongoing failure to take seriously the rights and interests of gamete donors and surrogates. </p>
<p>As Health Canada moves forward with this regulatory process, it is critical that all who participate in assisted human reproduction come to be understood as key actors in the use of reproductive technologies.</p><img src="https://counter.theconversation.com/content/84664/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alana Cattapan has received funding from the Social Sciences and Humanities Research Council of Canada and the Canadian Institutes of Health Research. She is on the Board of the Canadian Research Institute for the Advancement of Women.</span></em></p><p class="fine-print"><em><span>Françoise Baylis has received funding from the Canadian Institutes of Health Research and the Stem Cell Network. She wrote the expert ethics report for the Canadian government in the Reference regarding the Assisted Human Reproduction Act S.C. 2004, c.2. She was a member of the inaugural Board of Directors of Assisted Human Reproduction Canada (2006-2010).</span></em></p>Health Canada is drafting important regulations for assisted reproductive technologies. Initial documents treat egg donors and surrogates as little more than spare parts and walking wombs.Alana Cattapan, Assistant Professor, Johnson Shoyama Graduate School of Public Policy, University of SaskatchewanFrançoise Baylis, Professor and Canada Research Chair in Bioethics and Philosophy, Dalhousie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/842102017-09-21T03:00:01Z2017-09-21T03:00:01ZPunishing one person for STI transmission weakens public health efforts<figure><img src="https://images.theconversation.com/files/186712/original/file-20170920-895-18as0ho.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In most Australian states, if you have certain STIs, you have a legal responsibility to notify your potential sexual partners.</span> <span class="attribution"><span class="source">from shutterstock.com</span></span></figcaption></figure><p>Is one person to blame if another gets a sexually transmissible infection (STI)? In most Australian states, if you have certain STIs, you have a legal responsibility to notify your potential sexual partners. </p>
<p>The NSW government <a href="http://www.news.com.au/national/nsw-act/con-or-condom-uproar-over-changes-to-hiv-and-sti-disclosure-law/news-story/7e07c4f76526d4073f5f423e3303da07">last week</a> passed an amendment to the state’s <a href="https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=3426">Public Health Act</a> that increased the associated penalties by doubling the maximum fines and adding potential jail time. </p>
<p>Section 79 (1) of the Act <a href="https://www.parliament.nsw.gov.au/bills/DBAssets/bills/BillText/3426/b2016-144-d26_House.pdf">now reads</a>:</p>
<blockquote>
<p>A person who knows that he or she has a notifiable disease, or a scheduled
medical condition, that is sexually transmissible is required to take reasonable
precautions against spreading the disease or condition.</p>
<p>Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.</p>
</blockquote>
<p>In addition to increasing potential penalties, the amendment removed an earlier provision mandating disclosure of STI status, replacing it instead with the need for “reasonable precautions”. </p>
<p>This is a positive change for the law that reflects the best available research on STIs and transmission. Yet its coupling with increased penalties has sent a mixed message about sexual health in the state. </p>
<p>Further, the idea that punishing STI exposure or transmission will decrease rates of infection is <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2128015">not supported by global research</a> on HIV, and there is no reason to believe this would be any different for other STIs. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/moral-responsibilities-to-disclose-your-hiv-status-to-partners-arent-so-clear-cut-51383">Moral responsibilities to disclose your HIV status to partners aren't so clear-cut</a>
</strong>
</em>
</p>
<hr>
<h2>Laws across Australia</h2>
<p>Health law is pretty complex and mainly left up to each state and territory. Generally speaking, across Australia you risk some kind of punishment for knowingly infecting another person with what are often referred to as “<a href="http://www.health.gov.au/internet/main/publishing.nsf/content/cda-pubs-cdi-2000-cdi2408-cdi2408g.htm">notifiable diseases</a>”. This list covers a range of infections but STIs include chlamydia, gonorrhoea, syphilis, HIV, shigella, donovanosis, and hepatitis a, b and c. </p>
<p>In some states, notably <a href="https://www.legislation.nsw.gov.au/#/view/act/2010/127">New South Wales</a>, <a href="https://www.legislation.tas.gov.au/view/whole/html/inforce/current/act-1997-086">Tasmania</a> and <a href="https://www.health.qld.gov.au/publichealthact">Queensland</a>, it’s an offence just to knowingly expose someone to an infection, even if they don’t actually become infected. While in other states, like <a href="https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwiou86chLPWAhXDTbwKHbZXAYUQFggoMAA&url=http%3A%2F%2Fwww.legislation.vic.gov.au%2FDomino%2FWeb_Notes%2FLDMS%2FPubStatbook.nsf%2Ff932b66241ecf1b7ca256e92000e23be%2F8B1B293B576FE6B1CA2574B8001FDEB7%2F%24FILE%2F08-46a.pdf&usg=AFQjCNHWftaXq4M2CKSHQw-mCoyIC_27lw">Victoria</a> and <a href="https://www.legislation.sa.gov.au/LZ/C/A/SOUTH%20AUSTRALIAN%20PUBLIC%20HEALTH%20ACT%202011.aspx">South Australia</a>, health acts do not specify penalties for exposure or transmission, referring instead to the respective crime acts. For the most part, curable STIs do not rank as serious enough for criminal prosecution.</p>
<p>What is unique about NSW is that it uses the Public Health Act to single out STIs and describe specific punishments above and beyond other infections. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/186724/original/file-20170920-927-cnybuc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/186724/original/file-20170920-927-cnybuc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/186724/original/file-20170920-927-cnybuc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/186724/original/file-20170920-927-cnybuc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/186724/original/file-20170920-927-cnybuc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/186724/original/file-20170920-927-cnybuc.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/186724/original/file-20170920-927-cnybuc.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/186724/original/file-20170920-927-cnybuc.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Moving away from mandating disclosure of a person’s STI status to their partner is actually positive.</span>
<span class="attribution"><a class="source" href="https://unsplash.com/search/photos/partners?photo=p3UCTiZIU6M">Photo by Gerrit Vermeulen on Unsplash</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Although laws in NSW seem unusually fixated on STIs, the move away from mandated disclosure in favour of “reasonable precautions” is a positive step. While disclosure may seem sensible on the surface, it’s not the most effective at preventing transmission. This is because disclosure requires that someone be aware of an infection and many people with an STI don’t realise they are infected. For example, <a href="https://kirby.unsw.edu.au/report/annual-surveillance-report-hiv-viral-hepatitis-stis-2016">it’s estimated</a> nearly three quarters of chlamydia infections in young people in Australia go undiagnosed every year. Relying on disclosure can, therefore, give people a false sense of security. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/sexually-transmissible-infections-on-the-rise-in-australia-a-snapshot-68681">Sexually transmissible infections on the rise in Australia: a snapshot</a>
</strong>
</em>
</p>
<hr>
<p>There are other more effective strategies than disclosure for protecting someone from infection. With HIV, for example, <a href="https://hptn.org/research/studies/hptn052">successful treatment</a> means the risks of transmitting the virus to another person are virtually nonexistent. Under the amended NSW law, treatment could quite rightly be considered a reasonable precaution to avoid transmitting HIV.</p>
<p>But the state’s Public Health Act is relevant to all STIs, not just HIV. For other infections, it’s less clear what precautions might be seen as reasonable. Condoms can offer protection from some infections, but not all, and they are <a href="http://onlinelibrary.wiley.com/doi/10.1363/3800606/full">rarely used</a> for oral sex. Given more and more chlamydia and gonorrhoea cases are <a href="https://kirby.unsw.edu.au/report/annual-surveillance-report-hiv-viral-hepatitis-stis-2016">identified in the throat</a>, this is potentially problematic.</p>
<h2>Punishment doesn’t help</h2>
<p>Every year, there are over 100,000 STI <a href="https://kirby.unsw.edu.au/report/annual-surveillance-report-hiv-viral-hepatitis-stis-2016">diagnoses across Australia</a>, the vast majority of which can be cured using antibiotics. Ultimately, public health initiatives aim to reduce new cases and lower the overall amount of infection.</p>
<p>It’s been suggested by public health experts that criminalising transmission can <a href="http://www.tandfonline.com/doi/full/10.1080/09581596.2015.1052731">undermine public health efforts</a> by reinforcing stigma and causing people to delay accessing testing, treatment and care. </p>
<p>And in <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2128015">a review</a> of legal conditions around the world, researchers found that there was no link between laws criminalising HIV transmission and lower infection rates. The review also found such laws disproportionately impacted those who may experience marginalisation, such as young people and women. </p>
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Read more:
<a href="https://theconversation.com/stigma-and-lack-of-awareness-stop-young-people-testing-for-sexually-transmitted-infections-80265">Stigma and lack of awareness stop young people testing for sexually transmitted infections</a>
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<p>In reality, situations where an individual recklessly or wilfully places another at risk of an STI are <a href="http://www.hivmediaguide.org.au/media-tool-kit/hiv-in-the-news/criminal-cases-involving-hiv-transmission-or-exposure/">incredibly rare</a> and health officials have many options besides punishment. </p>
<p>As part of their core work, doctors and clinics counsel on and work with people to prevent onward transmission, and in some cases public health orders can be used to compel people to, among other actions, attend counselling and refrain from activities that might spread an infection. In the most extreme situations, criminal charges can be brought on the basis of grievous bodily harm.</p>
<p>Overall, a special and punitive focus to STIs risks further entrenching stigma and undermining the Act’s intent, which is to manage and reduce infection. If there is any hope of reducing STIs in Australia, laws must aim to foster an environment where people feel comfortable, able and willing to get tested and engaged with their sexual health. </p>
<p>While it seems unlikely a rush to prosecute those who expose others to STIs will spring up from this amendment, the law as it is currently written leaves open that rather serious possibility. In NSW and across Australia, health law consistently places the burden of prevention on one partner. In an ideal world, all parties to a sexual encounter take “reasonable precautions” to protect themselves and each other from infection.</p><img src="https://counter.theconversation.com/content/84210/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Denton Callander receives funding from the Australian Department of Health, the Australian Research Council, the National Health and Medical Research Council, and the New South Wales Ministry of Health. </span></em></p>NSW has changed its laws imposing criminal penalties on someone with an STI who doesn’t take “reasonable precautions” to not infect their sexual partner.Denton Callander, Research fellow, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.