Private health insurance regulation: Ethical implications for rural residents

Helene Jacmon1, Fiona MacDonald2,3

1 Monash University, Wellington Road & Blackburn Rd, Clayton VIC 3800, hjac6@student.monash.edu
2 Australian Centre for Health Law Research, Queensland University of Technology, C Block, Gardens Point Campus, GPO Box 2434 Brisbane Queensland 4001
3 Department of Bioethics, Dalhousie University 5849 University Avenue, Room C-315, CRC Bldg, PO Box 15000 Halifax, NS  B3H 4R2, Canada

The Australian Government uses positive and negative incentives in legislation to encourage people to take out private health insurance. The stated purpose of this regulatory framework is to contribute to the sustainability of the public health system through reducing public hospital utilisation. Government also claims that individuals will directly benefit through affordable access to private healthcare. This regulatory framework applies to individuals regardless of their ability to access private healthcare services, and there is no way to freely opt-out. This presentation will focus on two ethical issues arising from the regulatory framework. The first issue is potential constraints on an individual’s autonomy. The presentation will identify if and how autonomy may be constrained, and explore whether this approach may be justifiable by the intended outcomes of the regulatory framework. The second ethical issue relates to the regulatory framework’s application to rural residents. Rural residents have, as a group, significantly less access to private healthcare services, and experience poorer health outcomes compared to their urban counterparts. This raises ethical concerns regarding equitable access to the benefits of private health insurance, and the fair distribution of associated burdens between urban and rural residents. The presentation concludes that the regulatory framework as it is currently applied to rural residents raises significant ethical concerns.


Biographies

Helene Jacmon is currently studying towards a Master of Bioethics at Monash University. Prior to returning to study Helene worked for the Australian Taxation Office in a variety of roles in administrative policy, law interpretation, and project management. Helene is interested in ethical issues arising from health/social policy and is passionate about justice.

Dr Fiona McDonald is a Senior Lecturer at the Australian Centre for Health Law Research at the Queensland University of Technology and an Adjunct Associate Professor at the Department of Bioethics, Dalhousie University, Canada. She is a co-editor of Health Law In Australia (Thomson 2014), Health Workforce Governance (Ashgate 2012) and a co-author of Ethics, Law and Health Care (Palgrave 2014). Interested in regulation and healthcare, her research interests currently focus on the governance of health systems, including health professionals, health facilities and health technologies, and rural bioethics.

Mistaken for medicine: How potentially misleading therapeutic claims affect patients’ perceptions of CAM products

Peter Harris1

1 School of Law, University of Canterbury, Private Bag 4800, Christchurch 8140, peter.harris@pg.canterbury.ac.nz

New Zealand’s complementary and alternative medicine (CAM) product regulations are among the most impotent in the developed world.  In the current healthcare environment, where patients are taking increasing responsibility for their general wellbeing, this laissez-faire regulatory stance puts the public at risk of mistaking these products for legitimate medicines.  More than half of online CAM products recently reviewed contained therapeutic claims, which are prohibited under New Zealand’s legislation.  While unsubstantiated and unregulated therapeutic claims are a simple target for enforcement measures, New Zealand’s current Dietary Supplement Regulations do not make provision for such enforcement, with any action therefore having to be taken under fair trading legislation or the Medicines Act; which happens only infrequently.

A new Bill on the horizon seeks to reform this sorely outdated legislation and allow therapeutic claims under the moniker of ‘health benefit claims’ when founded on scientific evidence or traditional evidence, relating to a named condition.  However this only addresses part of the problem with the current CAM product regulatory environment.  By permitting medicinal claims on these products, the line between stringently tested and regulated medicines and ad-hoc remedies is increasingly blurred, potentially misleading any consumer who seeks to maintain their health by self-medicating with effective products.

I will look at these misleading and deceptive claims in light of the current and proposed legislation, and subsequently consider whether these claims influence a patient into incorrectly believing a CAM product is a medicine.  I am currently undertaking empirical research to look into what effect unregulated therapeutic or medicinal claims on CAM products have upon consumer perceptions of the nature of the product, and how consumers are influenced by this marketing.  The results from this research will inform the discussion.


Biography

Peter Harris is a Master of Laws candidate at the University of Canterbury.  With a Bachelor of Laws and a Bachelor of Science majoring in Chemistry, he is combining this background in a cross-disciplinary Master’s thesis.  Peter’s thesis is looking into the regulation of complementary and alternative medicines, with an especial consideration on the role of scientific research in law making and regulatory decisions.

The concept of the ‘least restrictive alternative’ in law governing compulsory health care

John Dawson1

1 Faculty of Law, University of Otago, Dunedin, New Zealand

It is often said that, when the law authorises treatment without consent – such as under mental health legislation – clinicians must use the ‘least restrictive alternative’, or the ‘least drastic’ intervention. This could be considered an ethical principle, intended to reduce limits on patients’ autonomy. It is also a general principle of human rights law, designed to reduce restrictions on patients’ rights.

But what does the concept mean, in difficult cases? Less restrictive compared to what? How are the other alternatives to be identified, to which an intervention is compared? Will purely speculative alternatives suffice?

Moreover, what roles does the concept play in healthcare law? Does it go to fundamental questions of authority, so an intervention is deemed unlawful if the clinician does not take the least restrictive approach? Or is it merely one factor to take into account in the exercise of discretion? What of liability? Is it professional negligence not to use the least drastic approach?

This paper tries to unpack the meaning and functions of this ubiquitous concept, analysing judicial reasoning in leading cases in which the concept is employed.


Biography

John Dawson’s principal research field is mental health law, with a particular focus on the civil commitment process and use of community treatment orders. He has studied these matters in NZ, Australia, Canada, and the UK, and has an LLD for publications in the field. Recent publications include Dawson and Gledhill (eds) NZ’s Mental Health Act in Practice (VUP, 2013) and several chapters of Skegg and Paterson (eds) Health Law in NZ (Thomson Reuters, 2015). He also teaches jurisprudence and constitutional law.

Trust impaired: Practitioners’ views on ethics and the law regarding mandatory reporting of impaired practitioner-patients

Marie M Bismark1, Ben Mathews2, Matthew J Spittal,1 Jennifer M Morris1, Laura A Thomas1 and David M Studdert3

1 Centre for Health Policy, University of Melbourne, 207-221 Bouverie Street, Parkville, VIC, 3053
2 Australian Centre for Health Law and Research, Faculty of Law, Queensland University of Technology, 2 George Street, Brisbane, QLD, 4000
3 Center for Health Policy, Freeman Spogli Institute for International Studies, Stanford Medical School, 291 Campus Drive, Stanford, California, CA94305

In Australia, mandatory reporting laws require registered health practitioners to report other health practitioners to the appropriate regulator, if they reasonably believe a practitioner poses a significant threat to the public due to practising while intoxicated, sexual misconduct, significant departure from accepted professional standards, or a practice-affecting health impairment.

A particularly contentious element of mandatory reporting laws is that, in most states and territories, they extend to situations where a practitioner becomes aware of another practitioner’s health impairment in the course of providing care to that person. That is, the laws require, under some circumstances, that practitioners breach the confidentiality of their practitioner-patients in the interests of public protection.

This presentation explores the findings from our research into the way in which this requirement is understood and applied by Australian practitioners. The research consists of two parts. First, it includes an analysis of 819 mandatory reports made to the Australian Health Practitioner Regulation agency between November 2011 and December 2012. Second, this analysis is complemented by semi-structured interviews conducted with eighteen health practitioners and four medico-legal advisors, in which they described their experiences and views regarding the mandatory reporting requirements.

The research paints a vivid picture of practitioners torn between ethics and law, and between the duties of public protection, confidentiality and professional loyalty. It reveals a number of myths and assumptions about when, how, why, and by whom, such mandatory reports of impaired practitioner-patients are made. It also highlights an oft-overlooked distinction between ideological debates about the aims of regulation, and empirical debates about the efficacy of particular approaches.

We will explore practitioners’ views on the appropriateness and effectiveness of mandatory reporting, their experiences of reporting practitioner-patients, and the ways in which they seek to reconcile tightly-held ethical principles with this new legal duty.


Biography

A/Prof Marie Bismark is a public health physician and health lawyer. Her research focuses on the role of clinical governance, regulation, and patient complaints, in improving the quality and safety of healthcare. Marie works within the Centre for Health Policy at the Melbourne School of Population and Global Health.

Marie is also a practicing medical doctor and experienced company director. She has previously served as a legal adviser to the Health and Disability Commissioner, been a solicitor with a leading New Zealand law firm, and completed a Harkness Fellowship in Healthcare Policy at the Harvard School of Public Health.

The role of legislation in shaping public opinion: The case of gamete donation

Selina Metternick-Jones1

1 University of Sydney, New South Wales 2006, Australia smet8870@uni.sydney.edu.au

Biomedicine and society have a particularly tense relationship, with medicine often challenging established moral norms. This complicated relationship is explored by analysing the ethical and regulatory perspectives surrounding third party reproduction and the use of donor gametes. Bioethics identifies the way individuals and society ought to act, however this is not always how they do act. In these instances, regulatory frameworks should be implemented to promote ethically acceptable approaches to the provision of medicine. Two examples of this have been explored. Firstly, access to donated gametes for third party reproduction by single and lesbian women has challenged Australian society’s traditional view of family. Legislative reform has been needed in order to protect reproductive autonomy in an equitable manner. Secondly, access to information by donor conceived children regarding their genetic parentage has historically been denied. However, regulatory frameworks have been put in place to protect the rights of the child. It is concluded that through challenging existing moral norms biomedicine encourages the evolution of values within society. As this evolution is often slow, regulatory frameworks are needed to protect the rights of individuals and further encourage change within society. While this may not be the ideal approach, it is necessary due to the speed at which new medical advances are made, making it difficult for society’s moral consideration to keep pace.


Biography

Selina Metternick-Jones is the Ethics Coordinator at Sir Charles Gairdner Hospital and manages the Human Research Ethics Office and the associated Human Research Ethics Committee. Selina is currently completing her Masters in Bioethics at the University of Sydney. Through this program she is completing a thesis on parental responsibility in the use of pre-implantation genetic diagnosis. Previously, Selina worked for WA Health and was involved in the development of a national policy framework for newborn bloodspot screening in Australia. This work involved a consideration of programmatic, ethical and legislative issues as well as issues of public opinion.

From the grave to the cradle: Is it time to legislate posthumous parenthood?

Janine McIlwraith1

1 Slater & Gordon Lawyers, 485 La Trobe Street, Melbourne, VIC, 3000, janine.mcilwraith@slatergordon.com.au

Edgar Allen Poe wrote “The boundaries which divide Life and Death are at best shadowy and vague. Who shall say where the one ends, and where the other begins.”  More than 170 years on, the boundaries of life and death continue to be a fertile ground of bioethical debate and perhaps none more so than in the area of posthumous reproduction. The recent case of Re Leith Dorene Patteson [2016] QSC 104 highlights the continuing uncertainty and, some would say, inconsistency, of the legal approach to posthumous sperm retrieval in Australia. This presentation aims to critically examine the approach of the courts to applications for the retrieval and use of sperm from the brain dead or deceased man. In doing so, the broader issue of whether regulation is warranted in this arena is also considered. Perhaps unavoidably, the legal framework is critically evaluated in light of the ethical issues underpinning the emotionally charged discussion and the appropriate conceptualisation of the issue is explored.


Biography

Janine is a health lawyer who works in private practice as a Principal Lawyer with Slater & Gordon, Melbourne in their Medical Law Department. She has co-authored two prominent medical law texts, Health Care and the Law (4th, 5th & 6th editions) and Australian Medical Liability (1st & 2nd editions). Janine also co-authored the National Disability Insurance Scheme Handbook and has written and edited a number of chapters for Halsbury’s Laws of Australia including the chapter on surrogacy. Janine is also a Senior Fellow at Monash University.

Beyond fair benefits: Reconsidering exploitation arguments

Julian J. Koplin1

1 Centre for Human Bioethics, Menzies Building, 20 Chancellors Walk, Monash University VIC 3800, julian.koplin@monash.edu

The question of whether we should allow the sale of ‘contested commodities’ such as organs, sex, gametes, and surrogacy services is of enduring interest within bioethics. One objection to such markets holds that they would be exploitative. I consider how we should understand these claims about exploitation, focusing on debates surrounding live donor kidney markets. Notably, exploitation arguments against kidney sales have been widely rejected in the bioethical literature on the subject. It is often argued that concerns about exploitation should be addressed by increasing the price paid to kidney sellers, not by banning the trade outright. I argue that this analysis rests on a particular conception of exploitation (which I refer to as ‘fair benefits’ exploitation), and outline two additional ways that the charge of exploitation can be understood (which I discuss in terms of ‘fair process’ exploitation and complicity in injustice). I argue that although increasing payments to kidney sellers can mitigate or eliminate ‘fair benefits’ exploitation, such measures will not necessarily address ‘fair process’ exploitation or complicity in injustice. I conclude by considering the relevance of each of these forms of exploitation to the design of public policy.


Biography

Julian Koplin is a PhD candidate at Monash University’s Centre for Human Bioethics. He has published on the topics of organ transplantation, blood donation, and the methods of bioethics.

Patients’ and family members’ experiences of non-litigation approaches to resolving medical injuries in New Zealand and the United States

Jennifer Moore1, Michelle Mello2, Marie Bismark3

1 Stanford Law School, 559 Nathan Abbott Way, Stanford, CA 94305 and the University of Otago, New Zealand, jennifer.moore@otago.ac.nz
2 Stanford Law School and Department of Health Research and Policy, School of Medicine, 559 Nathan Abbott Way, Stanford, CA 94305. 

3 Melbourne School of Population and Global Health, The University of Melbourne, 207-221 Bouverie Street, Parkville, Melbourne, Australia.

Context: The shortcomings of medical malpractice have led organisations to develop alternatives to meet patients’ needs following medical injuries. For example, in the United States (US), communication-and-resolution-programs (CRPs) seek to make disclosure of injuries, explanation, apology and other remedial gestures, routine. New Zealand (NZ) has long operated a no-fault compensation scheme for medical injuries. Despite the investment in these alternatives to medical malpractice, patients’ experiences with these processes are not well understood. This knowledge gap complicates health systems’ efforts to develop patient-centred responses to medical injuries.

Aims:

1) To further explore patients’ and family members’ experiences with medical injuries and reconciliation processes in order to understand aspects of institutional responses to injury that promoted and impeded reconciliation.

2) To make recommendations about how institutions can better meet injured patients’ needs.

Methods: We conducted in-depth, semi-structured interviews in NZ and the US. In NZ, we undertook interviews with 62 patients injured by healthcare in NZ, as well as administrators of 12 public hospitals, 5 lawyers specializing in Accident Compensation Corporation (ACC) claims, and 3 ACC staff. In the US, we conducted interviews with 30 patients and 10 staff involved with CRPs. Transcribed interview data were analysed thematically applying grounded theory principles.

Findings: Interview responses converged on five facilitators of more effective reconciliation following medical injuries: 1) involve the people who patients want involved in the disclosure discussion, including practitioners involved in the harm event; 2) engage the support of lawyers,  mediators, and patient relations staff as appropriate; 3) ask, rather than assume, what patients and families need from the process and recognize that, for many patients, being heard is important and should occur early in the disclosure process; 4) support timely, sincere, and meaningful apologies, avoiding forced or tokenistic quasi-apologies; and 5) choose words that promote reconciliation.


Biography

Dr Jennifer Moore is the 2015-16 New Zealand Harkness Fellow in Healthcare Policy. She is also a Senior Lecturer in Preventive and Social Medicine, and a Senior Research Fellow in Law at the University of Otago. Moore has previously served as a legal advisor to the NZ Law Commissioners and currently serves on the NZ Law Society Health Law Committee. She holds a practicing certificate as a barrister and solicitor, and five university degrees, including a PhD in public health from the University of Melbourne. Her first book, Coroners’ Recommendations and the Promise of Saved Lives, was published in June.

Exploring newly chartered territory: Can legal mediation processes be of benefit in clinical conflicts?

Associate Professor Nikola A. Stepanov1 2, Doctor Nicole Ash 3

1 Division of Tropical Health & Medicine, James Cook University, JCU Clinical School, The Townsville Hospital , 100 Angus Smith Drive, Douglas QLD  4814 nikola.stepanov@health.qld.gov.au
2 Centre for Health Ethics, Law and Education in the Tropics (CHELE), JCU Clinical School, The Townsville Hospital , 100 Angus Smith Drive, Douglas QLD  4814

3 Bespoke Dispute Management, Ground Floor, 53 Martin Place, Sydney 2000

Mediation and alternative dispute resolution processes are now well established in most areas of law including in the family law setting.

The ethos of mediation is that mediator should act as facilitator to encourage any parties to the dispute to work together to resolve conflict. Generally it is preferred to litigation, particularly where the parties need to work together to preserve a functional relationship. It may also be preferable on occasion to more prescriptive approaches such as clinical ethics committees.

In the family law setting co-parents in dispute need to find a way to work together for the sake of any children to the relationship. Similarly, in the clinical setting it is often critical to the wellbeing of affected patients (including children) that decision-makers and decision-influencers discuss issues and reach agreement in a timely, functional manner whilst preserving the relationship.

In this paper we discuss whether there is space for mediation in the clinical setting when disputes arise. Our primary purpose is to invite discussion on the use of clinical mediation generally; and to consider how current mediation models can be adapted to work effectively within the highly nuanced and complex area of health.


Biography

A/Prof Nikola Stepanov is the Director of the Centre for Health Ethics, Law, & Education (CHELE) in the Tropics; Chair of the Townsville Hospital and Health Service Human Research Ethics Committee; and a Board Director at Central West Hospital and Health Service.

Nikola is an ethicist, and is accredited as a (NMMAS) mediator by the Department of Justice, Qld; and as a Family Dispute Resolution Practitioner by the Federal Attorney General Department (children and property). Her main professional and research interests are in legal realism, paediatric ethics, and clinical mediation.

The scope of reproductive responsibility and reproductive duties

Vera Lúcia C. Raposo1

1 Macau University, Macau, vraposo@umac.mo

Macau Civil Code states, in Article 63/4, that parents won’t be responsible for malformations or diseases transmitted to their children during conception, nor for the ones subsequently transmitted to the foetus, except when these last ones were intentionally caused.

The purpose of this norm is to prevent wrongful life actions against parents. However, by doing so in such broad terms the norm ascribes a privileged status to parents, i.e., a kind of parental immunity that disregards the idea of reproductive responsibility towards the offspring.

It’s a fact that several arguments can be invoked in favour of Article 63/4, namely parents’ reproductive rights and their right to freedom of beliefs, based on which they can argue that every human life should have the chance to be born, disregarding the pain and limitations that it will face during its existence.

However, parent’s rights and beliefs cannot overlap the wellbeing of the future child and its right to a dignified life, to health and physical integrity. Even if we accept that being born is always better than not being born (which is yet to be demonstrated), and thus that parents cannot be held liable for not having aborted a severely handicapped or sick embryo/foetus, there are other situations in which parents should be held liable. This is the case when it was possible to bring to the world a healthy child instated of a sick child, either because a medical procedure was available (for instance, a medical treatment for the embryo/foetus, which in the future may be genetic therapy) either because parents could have selected a healthy embryo instead of a sick one (in the case of pre-natal genetic diagnosis).

In my presentation I will sustain the existence of parental reproductive duties and I will try to define their scope.


Biography

Vera Lúcia Raposo holds a law degree, a post-graduated degree in medical law, a master and a PhD in juridical-political sciences and a PhD, all obtained in the Faculty of Law of Coimbra University (Portugal)

She worked as an Auxiliary Professor at Coimbra University and at Agostinho Neto University (Angola). In addition, she also acted as of counsel in some law offices in Lisbon (Portugal). Presently she is Assistant Professor at Macau University (China).

She authored several book and articles in Portuguese, English and Spanish and she is a frequent speaker in international events on these topics.

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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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