Should patients consent to treatment by trainees?

Dr Cordelia Thomas1

1Office Of The Health And Disability Commissioner

Maintenance of an effective medical workforce is dependent on ongoing training of medical professionals. Training includes theoretical and practical training and at some stage trainees must perform procedures for the first time.

Informed consent is the cornerstone of the NZ Code of Rights. The code requires the patients are given the information that a reasonable person in their circumstances would expect to receive. If informed some patients may refuse to be treated by a trainee.

This paper considers with reference to decided HDC cases whether patients should be informed that the person performing a procedure on them is a trainee and, if so, whether a disclaimer in the consent form is sufficient.


Dr Cordelia Thomas is the Associate Commissioner- Investigations for the Health and Disability Commissioner. She was previously the HDC Acting Chief Legal Advisor, Specialist Senior Legal Advisor and Investigations Manager.

Previously, she was the senior legal advisor for Toi te taio : the Bioethics Council.

She was a senior lecturer in law at Massey University and continues to teach Public Health Law.

Her research interests include medical law and bioethics . She has published widely and is the author of several textbooks.

Legalised physician assisted death in the Australasian context: At the intersection between ethics, law and end of life care

Linda Sheahan1

1 Centre for Values Ethics and the Law in Medicine, The University of Sydney, Medical Foundation Blg K25, University of Sydney, NSW 2006, Clinical Ethics Consultant and Staff Specialist Palliative Care, South East Sydney Local Health District , Research Support Office, G71, East Wing Edmund Blacket Building, Prince of Wales Hospital, Randwick NSW 2031,

The issue of physician assisted death (PAD) remains a highly contested. There are a number of jurisdictions around the world that have for some time had forms of legalised assisted death, including the Netherlands, Belgium, Luxembourg, Switzerland, and the U.S. states of Oregon, Washington State, Vermont and Montana. More recently, California and Canada have introduced PAD legislation. In June 2016, the Parliament of Victoria Legislative Council’s Legal and Social Issues Subcommittee Inquiry into End of Life Choices recommended legalisation of assisted death in the Australian state of Victoria.[1] This paper will briefly review the ethical arguments for and against legalisation of assisted death, summarise the international experience of assisted death in jurisdictions where it has been legalised, and contextualise the recommendation for legalised assisted death in Australia with reference to end of life care more broadly. It will finish with identification of the questions that yet need to be answered to help guide next steps at the intersection between bioethics, end of life care, and the law.

[1] Parliament of Victoria Legislative Council’s Legal and Social Issues Subcommittee Inquiry into End of Life Choices Final Report. Accessed 16 June 2016 at:


Dr Linda Sheahan is a Palliative Medicine Physician and Clinical Ethics Consultant for the South East Area Health Service NSW. She is a Fellow of the Royal Australian College of Physicians and the Australasian Chapter of Palliative Medicine, holding a conjoint appointment with UNSW medical school. She has a Fellowship in Clinical and Organisational Ethics with the Joint Centre for Bioethics in Toronto, Canada, and is the Clinical Ethics Consultant for South East Sydney Local Health District. She is an Honorary Associate with the Centre for Values, Ethics and the Law, University of Sydney.

TCAM: Should registered biomedical practitioners be using it?

Alma M H Rae1

1 Masters Student, Bioethics Centre, University of Otago, New Zealand.

The use of traditional and complementary medicines is increasing around the world.  This paper focuses on ethics and law as applicable to the use of TCAM modalities, in New Zealand, by doctors trained in mainstream Western biomedicine.  Particular attention is paid to traditional Chinese medicine including acupuncture, to Ayurveda, and to homeopathy.  A discussion of the ways TCAM use may satisfy, or violate, the principles of beneficence, non-maleficence, autonomy and justice is followed by a look at relevant legal provisions, how they are actually applied in this area of medical practice, and what might be done to improve them, in order both to protect the public and to give doctors greater clarity as to what is, and is not, responsible and ethical medical practice.  I conclude that, broadly speaking, TCAM is not the proper domain of biomedical practitioners, and that a permissive subsection in our Health Practitioners Competence Assurance Act should be removed.


Alma Rae became a registered medical practitioner in NZ in 1981.  Following six years in general practice she trained in psychiatry and has worked in that specialty ever since.  After attending a Philosophy and Psychiatry Conference in 2000 she developed an interest in bioethics, which led via the Bioethics Centre in Dunedin to a Masters in Bioethics and Health Law.  The current presentation derives from her dissertation for that degree.

A legal and clinical framework for assessing decision-making capacity in New Zealand

Alison Douglass1Dr Greg Young2

1 Barrister, 2014 recipient of the New Zealand Law Foundation International Research Fellowship, Adjunct senior lecturer, Bioethics Centre, University of Otago;
2 Psychiatrist Capital & Coast DHB, clinical lecturer, Bioethics Centre, University of Otago.

Deciding whether a person has decision-making capacity to make valid care and welfare decisions is crucial to the protection of a person’s legal rights and their experiences in the health system.  The clinical assessment of capacity lies at the interface of law, medicine (health care) and ethics.  In New Zealand, the Protection of Personal and Property Rights Act 1988 (PPPR Act) is the adult guardianship law for people who may permanently or temporarily lack capacity. The PPPR Act was progressive legislation for its time, but the range of people that use the legislation and the social environment in which it operates are now very different. There has been a comprehensive overhaul and ongoing review of this area of law in England and Wales with the introduction of the Mental Capacity Act 2005 and a Code of Practice for the guidance of health professionals, lawyers and a range of people involved with adult incapacity.

Legal developments within New Zealand and under human rights conventions, such as the United Nations Convention on the Rights of Persons with Disabilities (CRPD) emphasise the need to review and update New Zealand’s law, as well as apply in practice the contemporary notion of supported decision-making.   It is within this context that the presenters will outline their work on the development of practical guidance in the form of an interactive toolkit for clinicians when assessing capacity, as well as a survey of doctors’ knowledge about capacity assessment, how supported decision-making might apply within New Zealand’s cultural context when assessing capacity, and why such guidance is a first step towards New Zealand developing its own Code of Practice. The toolkit for assessing capacity may be found at


Alison Douglass is a practicising lawyer and is appointed by the court to represent people with impaired capacity.  Alison is the recipient of the New Zealand Law Foundation 2014 International Research Fellowship. She undertook a legal research project in England and in July 2016 published her law reform report entitled: “Mental Capacity: updating New Zealand’s Law and Practice”. Alison co-authored the “Toolkit for Assessing Capacity”, a guidance for clinicians in the New Zealand healthcare setting, with co-presenter, Dr Greg Young, consultant psychiatrist Capital & Coast Health DHB, and Professor John McMillan, Bioethics Centre, University of Otago.

Reconciling ethics and law in the clinical context

Vicki Xafis1, Patsi Michalson2

1 Sydney Children’s Hospitals Network, Children’s Hospital at Westmead, Corner Hawkesbury Rd & Hainsworth St, Westmead, NSW 2145 
2 Sydney Children’s Hospitals Network, Sydney Children’s Hospital, High Street, Randwick, NSW 2031

Medical decision-making can be complex as parents of patients in the paediatric context weigh up the treatment choices they have available for their child. In the majority of cases, parents and the clinicians involved in the care of their child come to a consensus view about the most appropriate treatment option(s) for the paediatric patient. There are, however, occasions when divergent views strongly held by both parties cannot easily be reconciled and where legal and ethical considerations provide the only structure for resolving the impasse. Such cases can sometimes result in legal experts becoming involved to the exclusion of organisational ethics experts.

The workshop will commence with the proposition that discussions exploring the ethical issues that arise in paediatric medical decision-making must be embedded in considerations of lawful practice but that early discussions involving ethics can often prevent their escalation to purely legal considerations and improve the quality of the decision-making both in and out of Court. The role that the inclusion of ethical deliberations can have in courts of law will be highlighted and insight from a range of healthcare professionals with whom this has been discussed will be provided. The proposition will be further considered by workshop participants.

Other workshop themes include:

  • practical issues involved in the provision of advice from the areas of ethics and law in the clinical context
  • perceptions around the merit of involving the two disciplines in the conversations health providers have with parents
  • impediments to involving the two disciplines in discussions with parents
  • an exploration of how the two disciplines can work side by side to provide the best outcome for patients, families, and clinicians.

Based on the presenters’ experience and input from workshop participants, practical suggestions on how the two disciplines can work together effectively to produce optimal outcomes will be summarised.


Vicki Xafis is the Sydney Children’s Hospitals Network Clinical Ethics Coordinator. She is a founding member of the Australasian Clinical Ethics Network and co-stream leader of the Clinical Ethics Stream, AABHL; a founding member and Secretary of the PSANZ Perinatal Palliative Care Subcommittee; and affiliated with VELiM, University of Sydney.

Patsi Michalson  is a South African- born  former Barrister and Senior Counsel who  practised extensively in the areas of Family Law and Medical Law before  recently moving to Australia where she now oversees Medico-Legal matters  for the Sydney Children’s Hospitals Network, which includes the two largest children’s hospitals in NSW.

About the Association

The Australasian Association of Bioethics and Health Law (AABHL) was formed in 2009.

It encourages open discussion and debate on a range of bioethical issues, providing a place where people can ask difficult questions about ideas and practices associated with health and illness, biomedical research and human values.

The AABHL seeks to foster a distinctive Australasian voice in bioethics, and provide opportunities for international engagement through its membership, journal and conferences.

Members come from all the contributing humanities, social science and science disciplines that make up contemporary bioethics.

Many members have cross-disciplinary interests and all seek to broaden the dialogues in which all members of the wider community ultimately have an interest.

The AABHL is a supportive, creative and challenging community that provides a rich source of continuing academic refreshment and renewal.

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