Mr Joel Grieger1
1University of Adelaide – Law School
As a broad generalisation, the core concepts of medical negligence are understood by healthcare professionals. It is accepted that, as providers of health care, they owe their patients a duty of care and are expected to meet the requisite standard. With the law and professional standards aligning, this is neither conceptually difficult nor difficult to understand.
Perhaps less familiar to healthcare professionals though are terms such as ‘safety defect’, ‘acceptable quality’, ‘misleading or deceptive conduct’ or ‘unconscionable conduct’. These are terms entering the medico-legal dialogue, found in the Australian Consumer Law (ACL), and becoming increasingly relevant to the provision of health care. Notwithstanding this, health professionals may have difficultly associating these terms with the work they do.
With the proliferation of technology and advances in medical treatment, the medico-legal landscape is responding by accommodating more than the traditional claims in negligence. There have been some recent, high-profile judgments considering the application of ACL provisions to instances of patient harm; that is, harm (physical, mental, or financial) resulting from medical or therapeutic treatment, devices, products, or drugs. This presentation reflects on these cases and examines the ACL provisions (and specific elements) applied. It considers what potential ACL breaches in healthcare might look like, as well as the remedies available to successful plaintiffs.
This shift in landscape represents a ‘knowledge gap’. This presentation addresses that gap, considers the efficacy of applying ACL provisions to medico-legal disputes, and concludes that the increasingly diverse responses to patient harm needs to be clearly understood.
Biography:
Joel Grieger is a M.Phil Candidate and Sessional Teacher at the University of Adelaide Law School. His current research considers legal issues arising from the application of technology to healthcare. He primarily teaches in commercial law subjects, having previously practised as a commercial lawyer in South Australia.