Australian Professional Practice Bodies and the Tort of Negligent Investigation

Journal of Law and Medicine, Vol. 17, pp. 46-51, 2009

ANU College of Law Research Paper No. 09-30

7 Pages Posted: 26 Oct 2009 Last revised: 5 Nov 2009

See all articles by Esme Shirlow

Esme Shirlow

King's College London; ANU College of Law

Thomas Alured Faunce

Australian National University

Date Written: August 25, 2009

Abstract

The New South Wales Supreme Court has examined the statutory and common law duties of the New South Wales Health Care Complaints Commission and the New South Wales Medical Board in the recent case of Attorney General (NSW) v Bar-Mordecai [2008] NSWSC 774. The judgment establishes that a professional practice body investigating the alleged misconduct of a doctor will rarely be liable under Australian statutory or common law duties to compensate that doctor for harm arising as a result of negligent investigatory practices. In particular, it establishes that such a body owes no duty to take reasonable care to avoid psychiatric injury to a medical practitioner against whom a complaint has been lodged that is being investigated by it. It is argued that the differing relevant approaches to the tort of negligent investigation in Canada and Australia stem from differences not only in policy values but in the legal frameworks used in each jurisdiction to determine the existence of duties of care at common law.

Keywords: Professional Regulation, Healthcare Complaints, Professional Misconduct, Negligent Investigation, Psychiatric Injury

Suggested Citation

Shirlow, Esme and Faunce, Thomas Alured, Australian Professional Practice Bodies and the Tort of Negligent Investigation (August 25, 2009). Journal of Law and Medicine, Vol. 17, pp. 46-51, 2009; ANU College of Law Research Paper No. 09-30. Available at SSRN: https://ssrn.com/abstract=1461868

Esme Shirlow

King's College London ( email )

Strand
London, England WC2R 2LS
United Kingdom

HOME PAGE: http://au.linkedin.com/pub/esme-shirlow/95/b5/a58/

ANU College of Law ( email )

Canberra, Australian Capital Territory 0200
Australia

Thomas Alured Faunce (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 0200
Australia
61 2 61253563 (Phone)

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