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Special Provisions for Medical Negligence

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UWA Law School Online CPD Series

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Special Provisions for Medical Negligence in the Civil Liability Act 2002 (WA) – Much Ado About Nothing?

Dr Marco Rizzi

The Civil Liability Act 2002 (WA) (‘CLA’) is unique in its provision of a special standard of care for health professionals under s 5PB. Other civil liability statutes include special provisions for the liability of ‘professionals’ in general, and these provisions normally take the form of the so-called ‘peer professional opinion’ defence. The decision in Child and Adolescent Health Service v Mabior [2019] WASCA 151 clarifies the nature of s 5PB as a special standard of care (as opposed to a defence). The Court also made some important points regarding the method of identification of relevant experts for the purpose of establishing complex scientific facts, which is a different exercise from the identification of the health professional’s peers for the purpose of establishing standard of care and breach of duty. This interpretation arguably systematises the CLA at the expense of its intended scope of application. Indeed, the current restrictive approach potentially deprives s 5PB of any practical relevance. This is not an insignificant development. Indeed, the COVID-19 pandemic is putting healthcare systems under increasing amounts of pressure, and patients are bound to be cared for in accordance to practices that, by the very nature of the rapidly evolving circumstances, cannot be well-established.

CPD Value: 1 CPD point in Competency Area 4: Substantive Law

About the presenter

Dr Marco Rizzi joined UWA Law School in 2018 where he teaches Torts and Health Law & Policy in the JD program, and Regulatory Theory in the Masters program. He holds an LLM and a PhD from the European University Institute. He researches the law as a tool for the protection of individual and collective health and safety. His interests include negligence and medical liability in particular. He is co-author of the recent textbook Connecting with Tort Law (2ed, OUP 2020) and he has widely published on the topics of torts, health law, risk and regulation.

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