Legal liability of clinical ethics services in Australia

Dr Carolyn Johnston, Sharon Feldman

1University of  Tasmania, Hobart, Australia, 2University of Melbourne, Melbourne, Australia

Clinical ethics services (CESs) are developing apace in Australia. They provide decision-making support to healthcare providers in ethically challenging scenarios through ethics case consultation. Clinical cases that benefit from consultation are often those that are contentious; they are likely to involve diverging views or conflict, to be emotionally charged, or to confront the boundaries of appropriate medical practice. CESs draw their membership from a broad range of clinical and lay expertise, and members undertake training and attend meetings, often at short notice, in addition to their clinical work. Although the institution which supports the CES will hold indemnity insurance, a claim in negligence against members for the advice they offer would be personally and professionally challenging.

In this presentation we consider the potential legal liability of members of a CES and the healthcare institution which supports the service. With no reported cases of litigation against a CES or its members in Australia, we look to international experience and first principles. We evaluate the prospects of a claim in negligence through application of legal principles to hypothetical case scenarios, and report on narrative accounts of members of CESs on their perceptions of potential legal liability.

We conclude that, under certain circumstances, a finding of liability against a CES or its members may be open to a court. Given the value of a CES to referring healthcare professionals, patients and the standing of the institution, the possibility of a claim necessitates professional, institutional and indemnity support for CESs and their members.


Dr Carolyn Johnston is a Research Fellow at University of Tasmania (Returning Raw Genomic Data: Patient Autonomy or Legal Minefield? Project) and holds an honorary appointment, Senior Fellow, Law with Melbourne University. Carolyn is Clinical Ethicist at Monash Children’s Hospital and provides academic input to  the Australian Network for Art & Technology art residency 2020.

Sharon Feldman is a recent graduate of the clinical ethics fellowship at the Cleveland Clinic in Ohio (April 2020). She is now pursuing a PhD at the University of Melbourne, researching the practice of clinical ethics consultation. Prior to these endeavours, Sharon practised health care law in Melbourne, and completed a Bioethics Masters at Columbia University in New York.

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