more_vertOn Sept 11, the UK’s House of Commons votes on a Private Member’s Bill (tabled by Rob Marris MP) that would legalise assisted dying. According to Healthcare Professionals for Assisted Dying, a group that lobbies for a change to the law, “dying people should be able to control the manner and timing of their death if their suffering has become unbearable”. The forces against assisted dying, or assisted suicide as some critics prefer to call it, are formidable. The most high-profile campaigner against assisted dying is Ilora Finlay, professor of palliative care at Cardiff University, co-chair of Living and Dying Well, chair-elect of the National Council for Palliative Care, past-President of the British Medical Association (BMA), and a member of the BMA’s Medical Ethics Committee.
Preference: Law
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e-cigarettes – what is the damage?
There has been a lot of debate about whether electronic cigarettes are the best technological solution to the smoking pandemic or the biggest looming threat to public health.
E-cigarettes are battery-powered devices that deliver nicotine to the user through a vapour by heating a solution of propylene glycol or vegetable glycerin, flavouring, and other additives. Flavours range from butter rum to caramel macchiato to strawberry lemonade.
The US Centre for Disease Control and Prevention reported earlier this year that the use of e-cigarette devices among middle school and high school students tripled between 2013-2014, with around 13 per cent of students using the devices. This surpasses the number of teens who smoke conventional cigarettes in the US.
Currently, there are more than 500 e-cigarette brands and more than 7000 flavours, and they all work in different ways to deliver varying amounts of nicotine, toxins, and carcinogens. With most e-cigarette studies funded or otherwise supported, influenced by manufactures of e-cigarettes, the current evidence base on e-cigarettes is very poor.
Julia Belluz from Vox recently examined more than 60 articles, studies, and reviews, and interviewed nine researchers and health experts to try and determine whether e-cigarettes were actually safe. You can read her detailed findings at. http://www.vox.com/2015/6/26/8832337/e-cigarette-health-fda-smoking-safety
She found that the health effects of e-cigarettes were unclear because of the lack of credible research. But she said that so far the short-term exposure to e-cigarettes doesn’t appear to carry any serious side effects, however the research is still early.
She found that e-cigarettes were mostly composed of nicotine and a nicotine solvent (propylene glycol or vegetable glycerin) and that the levels of toxicants and carcinogens in e-cigarette vapour were nine to 450 times less prevalent than in conventional cigarette smoke. Though propylene glycol and glycerin are generally considered safe substances, not a lot is known about the long-term effects of daily inhalation.
Most researchers were inclined to cautiously say that e-cigarettes were safer than regular cigarettes because the immediate harms of e-cigarettes appear to be minimal compared with regular cigarettes.
Co-Director of the US Center for the Study of Tobacco Products Thoman Eissenberg said that its probably fair to say that a long term e-cigarette user is not going to die from tobacco-caused diseases, but it’s not clear whether they will die from an e-cigarette caused disease and whether their rates of death will be less than, more than, or the same as the rates of death we see from tobacco-caused diseases.
Australian law doesn’t ban e-cigarettes but we have strong regulations regarding the potential therapeutic use. E-cigarettes must be registered via the Therapeutic Googs Administration and liquid nicotine has to have a prescription.
The AMA has written to the Federal Health Minister Sussan Ley to encourage the tightening of legislation around the use of e-cigarettes, concerned that they are targeted towards younger consumers.
The AMA is asking for:
· the introduction of laws to prohibit the advertising of e-cigarettes as per the prohibition on advertising of tobacco products;
· enforcement of laws that prohibit the advertising of e-cigarettes as a therapeutic good, specifically as an aid to cessation; and
· the prohibition of marketing of e-cigarettes to people under the age of 18.
The AMA has considerable concern about the increasing control of e-cigarettes by the tobacco industry, as Big Tobacco continues to invest heavily in the development and promotion of e-cigarettes.
Kirsty Waterford
Image by Vaping360 on Flickr, used under Creative Commons licence
[Correspondence] Caring for patients with end-stage kidney disease
The renal issue of The Lancet emphasises worldwide inequalities in access to renal replacement therapy.1,2 Innovative work in Tanzania supported by the International Society of Nephrology3 was particularly interesting. In Malawi, two hospitals provide 15 haemodialysis stations, treating about 60 patients with end-stage kidney disease and with health care provided free at the point of access. As in Tanzania, many patients in Malawi are diagnosed and referred when their kidney disease is at an advanced stage.
[Correspondence] An achievable goal: control and elimination of schistosomiasis
We were saddened to read the negative view of Allen Ross and colleagues (May 30, p 2220)1 about worldwide elimination of schistosomiasis. The authors judge that efforts to eliminate schistosomiasis from Africa are “audacious” and “will not work”. They suggest that funding should not be spent on distribution of praziquantel because this approach is “inherently flawed” because it “does not prevent reinfection” and might cause side-effects.2 They ignore the fact that praziquantel has been used for more than 30 years to treat hundreds of millions of people with little or no side-effects.
Trying to grab hold of vapour
New South Wales has enacted new laws to ban the sale of e-cigarettes to children in the latest move to tighten the legal noose around the supply, use and marketing of the controversial product.
The nation’s most populous state has amended its Public Health (Tobacco) Act to bring restrictions on the sale, display and promotion of e-cigarettes to young people broadly into line with those applying to other tobacco products after NSW Health Minister Jillian Skinner expressed concerns the devices might act as a “gateway” to tobacco smoking for children.
“This is a comprehensive piece of legislation which will guard against the re-normalisation of smoking among the young, as it has the potential to undermine decades of successful anti-smoking efforts in New South Wales,” Ms Skinner said.
The NSW legislation follows calls made by the AMA early this year for the marketing and advertising of e-cigarettes to be subject to the same restrictions as those that apply to tobacco products.
An AMA Working Group on the issue found that, because e-cigarettes essentially mimic the act of smoking, there were realistic concerns that they would encourage users to move on to tobacco products.
These concerns were heightened after an investigation in NSW found a large number of e-cigarette solutions marketed as nicotine-free actually contained the drug, creating the risk is that non-smokers using them would develop an addiction to nicotine.
The new NSW laws make in an offence to sell or supply e-cigarettes to minors (including through a vending machine) or to smoke them in a car in the presence of a child. In addition, tighter restrictions have been placed on their advertising and display.
Already, it is illegal to sell or supply e-cigarettes containing nicotine anywhere in Australia, and the Therapeutic Goods Administration has not recognised them as a therapeutic aid for quitting smoking.
But regulation of the sale and supply of e-cigarettes that do not contain nicotine is much less clear-cut.
Several states, including Western Australia, Queensland and South Australia, specifically prohibit the sale of devices designed to resemble tobacco products, and the WA Health Department recently won a Supreme Court case arguing that the rule applied to e-cigarettes.
To reduce ambiguity, the Queensland Government last year specified that smoking products included personal vaporisers.
But in several states and territories – including Victoria and Tasmania – the sale and use of e-cigarettes that do not contain nicotine remains essentially unregulated, as long as there is no therapeutic claim made, and it is not marketed as a toy or food to children.
But the AMA Working Group found that much of the marketing for e-cigarettes occurred online, and was clearly designed to appeal to young consumers.
“Many e-cigarettes have a very sleek appearance, are brightly coloured, and use sweet, fruit and chocolate flavoured solutions – all features intended to appeal to younger users,” the Working Group’s report said.
Its concerns have been echoed by the Cancer Council of Victoria, which said the almost total absence of regulation regarding e-cigarettes in some states was extremely concerning, given that they were “designed to mimic the act of smoking, have not been properly evaluated for safety and are clearly promoted to young people, with their fruit, confectionary and energy drink flavours”.
The AMA has called for national action to curb the marketing and sale of e-cigarettes, arguing that, “it would be an enormous backward step for public health if all the gains in tobacco control made in recent decades were to be undermined by increases in nicotine addiction through the use of e-cigarettes”.
Adrian Rollins
Higher drug price fears in trade deal fall-out
Health groups remain concerned the massive Trans-Pacific Partnership trade deal will push up the cost of medicine and hamper public health initiatives despite indications United States negotiators are prepared to give ground on controversial intellectual property protections.
While the future of the controversial trade pact is clouded following the failure of officials from 12 nations to seal an agreement in Hawaii last month, reports have emerged that the US is willing to back down on demands that data used to produce biologic medicines be subject to a 12-year exclusivity clause.
The clause would delay the competition pharmaceutical companies would face from cheaper generics, adding billions of dollars to their bottom line.
On the eve of the Hawaii talks, Trade Minister Andrew Robb told Fairfax Media he was pushing for the data exclusivity period to be slashed to five years, and it is understood the United States’ chief negotiator, US Trade Representative Michael Froman, was considering a counter-proposal for a base period of five years, followed by a three-year extension contingent on “certain circumstances”.
The secretive nature of the talks has meant that most observers have had to rely on information gained by websites like Wikileaks for information about the direction of negotiations on the deal which, if concluded, will encompass about 40 per cent of the global economy.
Mr Robb said that although the deal was not concluded at Hawaii, “we are definitely on the cusp”.
“While nothing is agreed until everything is agreed, I would say we have taken provisional decisions on more than 90 per cent of issues,” the Minister said.
But he admitted data protection for biologic medicines was among a number of “big outstanding issues” to be resolved: “You’ve got to set a balance somewhere between people getting a return on innovation on investment, and enabling competition to bring prices down for the rest of the community.”
Biologic medicines are derived from biological sources, and though they comprise only a fraction of drugs listed on the PBS, many are extraordinarily expensive, with a course of treatment often costing hundreds of thousands of dollars. In 2013-14, they accounted for a quarter ($2.3 billion) of PBS spending in 2013-14.
While the US may have given ground on access to biologic data, the AMA and other health groups remain concerned that other clauses in the proposed trade deal, including provisions allowing pharmaceutical companies to “evergreen” drug patents and giving investors scope to block governments taking public health measures, could undermine health care.
The AMA Federal Council has called on the Federal Government to reject “any provisions in trade agreements that could reduce Australia’s right to develop health policy and programs according to need”.
The Association said it was concerned that aspects of the proposed TPP could be used to attack key health policies and measures including the PBS and the cost of medicine, food labelling and tobacco control laws, restrictions on alcohol marketing, the operation of public hospitals and the regulation of environmental hazards.
Among the most controversial provisions are investor-state dispute settlement (ISDS) procedures that would enable corporations to mount legal action against government policies and laws they felt harmed the value of their investment or future profits.
Tobacco giant Philip Morris Asia used just such provisions in a 1993 investment agreement between Australia and Hong Kong to challenge Australia’s world-first tobacco plain packaging legislation in the courts and seek compensation, arguing that the policy undermined the value of its investment by ‘expropriating’ its trademarks and branding.
It is understood that Australia is arguing that health and environment policies, as well as the Pharmaceutical Benefits Scheme, be made exempt from ISDS provisions.
In addition, the TPP includes proposals demanding the removal of technical barriers to trade – provisions which companies have used to challenge regulations such as alcohol warning labels, alcohol excise, and front-of-packet food labelling.
There are also concerns market access rules in the TPP may be used to restrict government support for public hospitals and other health services by requiring that there be competitive neutrality between such entities and private health providers.
Medical charity Medecin Sans Frontieres is also apprehensive about the deal.
It said that without major changes in the Hawaii talks, the deal would have a “devastating impact” on global health.
MSF was particularly concerned about provisions it warned would “strengthen, lengthen and create new patent and regulatory monopolies for pharmaceutical products that will raise the price of medicines and reduce the availability of price-lowering generic competition”.
It said some of the most concerning provisions centred on patent evergreening, which would force governments to grant drug companies additional patents for changes they made to their medicines, even if these were of no therapeutic benefit.
Adrian Rollins
Discrimination, bullying and sexual harassment: where next for medical leadership?
Sexual harassment, the perceived career damage that can result from reporting such behaviour, and inconsistent standards of response by medical colleges and health services hit the headlines in early 2015.1 A background briefing paper published by the Royal Australasian College of Surgeons (RACS) in June 2015,2 as well as several articles in this issue of the Journal3–6 confirm these concerns are real.
Discrimination, bullying and sexual harassment (DBSH) occur in many workplace environments internationally, despite having been prohibited by law for decades. Trainees, medical students and female staff and colleagues are identified as the most likely targets. Proceduralists are particularly likely to offend. Some offenders unwittingly reproduce behaviours they have learned from role models of previous generations. Others are more deliberate or determined perpetrators, often with a reputation for misbehaviour that frequently goes unchecked. Observers who are aware of such behaviour may be covictims or coperpetrators, or both. Hospitals and professional associations sometimes foster a culture of abuse through covert sanctions against complainers, or by providing tacit approval by failing to act or by discouraging change.
There is little doubt of the perception among medical students and trainees that complaining can damage a career because “the hierarchy is too high and too strong”.7 Underreporting of abuse is prevalent across the entire health sector.8 Despite explicit professional values being taught, these seem to be overlooked, and there is a perceived disconnection between organisations’ stated values and their responses in individual cases of alleged abuse.9,10
Significant cultural change is necessary to make perpetrators aware that their behaviour will no longer be tolerated. The leadership required includes the following:
- understanding what constitutes DBSH;
- taking responsibility for proactively improving workplace culture and eradicating DBSH;
- providing training in appropriate behaviour, including resilience, performance under pressure and speaking up when DBSH occurs;
- recognising the right of victims to be able to report abuse or complain without fear of retribution;
- providing appropriate timely responses to allegations, that include various levels of sanction for perpetrators; and
- providing confidential counselling and support for those who have been affected.
In March this year, the RACS established an Expert Advisory Group to provide well grounded, informed and independent advice. The college published the background briefing paper, above, reviewing the evidence,2 and an issues paper11 that will cover the areas described above as well as equity between the sexes. It has also commissioned a prevalence survey of college fellows, trainees and international medical graduates, and qualitative research that captures the stories, effects and outcomes of individual cases. On the recommendations of the Expert Advisory Group, the RACS mounted an improved complaints process, and partnered with an independent external agency to provide the RACS Support Program for those affected.
Medical colleges have a vital role to play in honouring the “societal contract” that exists between the profession and the public,12 ensuring that DBSH are never tolerated and championing professionalism and standards.
Sexual harassment in the medical profession: legal and ethical responsibilities
Sexual harassment in medicine became a national concern after a senior surgeon warned that trainees who complain about these incidents are not well supported, and advised trainees that the safest action to protect their careers was to comply with unwanted requests.1 The surgeon referred to the case of Dr Caroline Tan, who was found by a tribunal to have been sexually harassed by a neurosurgeon who was involved with her surgical training. While Dr Tan successfully sued for sexual harassment,2 she reportedly faced substantial career detriment after pursuing her rights.1
While the prevalence of sexual harassment in Australian medicine is unknown, reports suggest it is an entrenched problem for both trainees3 and specialists.4,5 This is consistent with surveys in Australia, the United Kingdom, the United States, Sweden and Canada that have found between a quarter and three-quarters of women experienced sexual harassment in training or practice.6–9
Sexual harassment is an umbrella term covering a range of behaviour, from everyday exchanges communicating derogatory messages (“micro-aggressions”), through to direct acts of physical sexual assault.10
As we will show, some forms of harassment also constitute criminal sexual assault. Sexual harassment can adversely affect women’s safety and wellbeing, choice of specialty11 and career progression. The vast majority of incidents are unreported due to: lack of confidence that reporting would help; fear of adverse consequences; reluctance to be viewed as a victim; complicity of senior staff; and cultural minimisation of the problem.12 Men also experience harassment, but women are more frequently targeted.6,7
While sexual harassment occurs across professions, women in medicine are at particular risk because of male dominance of senior positions13 and the “patronage” system of training, whereby trainees depend on a small group of powerful senior colleagues for entry into training, assessment, job opportunities and career progression.
In this article, we review four dimensions of legal responsibilities owed by individuals and employers across Australia, and analyse professional standards and ethical frameworks. There are compelling legal, reputational and economic reasons for medical schools, hospitals, colleges and other organisations to create cultural change to reduce sexual harassment. These interests are further supported by an ethical and professional duty to promote gender equality and equal opportunity.
Four legal dimensions of sexual harassment
Criminal law
Criminal laws in every Australian jurisdiction make it an offence to commit sexual assault and more serious acts such as rape. Other criminal offences include indecent exposure, obscene communications and stalking.
Sexual assault is defined as an “unlawful and indecent assault” punishable by maximum prison terms of 5–21 years (Box 1). An assault is “indecent” if it has a sexual connotation and is “contrary to the ordinary standards of morality of respectable people within the community”.14 The acts found by the civil tribunal to have been committed without consent in Tan v Xenos2 (paragraphs 15–16 and 532–546) included embracing the complainant, kissing her on the lips, touching her breast, pinning her against a desk, and asking for oral sex. Such acts would constitute sexual assault if proved beyond reasonable doubt in a criminal prosecution.
Criminal laws in every state and territory set clear principles. Importantly, consent must be “freely and voluntarily given” for any sexual act to be lawful (Box 1). Consent is invalid if obtained by threat or intimidation, or by abuse of a position of authority (Box 1). Mere lack of physical resistance does not prove consent (Box 1). Therefore, sexual acts committed without any agreement will be criminal; as will sexual acts where a medical practitioner obtained “agreement” through threats, intimidation or reliance on a position of authority.
Anti-discrimination law
Legislation in all jurisdictions prohibits discrimination in the workplace. This legislation imposes two duties: individuals must not sexually harass a colleague; and employers must provide work environments free of sexual harassment.
The legislation prohibits unwelcome conduct of a sexual nature in circumstances where a reasonable person would have anticipated the other person would be offended, humiliated or intimidated (Box 2). Prohibited conduct includes inappropriate comments, sexual propositions, indecent exposure and sexual assault. Circumstances relevant in determining whether the other person would be offended, humiliated or intimidated include each person’s sex and age, and the relationship between the individuals. The concept of “unwelcome conduct”, with the element of offence, humiliation or intimidation, distinguishes unlawful harassment from lawful interactions between consenting adults. Therefore, even forms of harassment which are apparently more minor are serious and cannot be dismissed as trivial or justified as banter.
Sexual harassment under anti-discrimination legislation has consequences for individual offenders and employers. Individuals may face civil proceedings and be ordered to pay damages (Box 2). Employers are vicariously liable for an individual’s acts unless reasonable steps were taken to prevent them (Box 2). It is insufficient for an employer to merely respond after a complaint. Proactive steps include making policies, educating staff, establishing grievance procedures and monitoring workplace environments.
Where sexual harassment is proved, damages are awarded to approximate the hurt caused to the victim. In Tan v Xenos, the award was $100 000.2
Tort law
Tort law gives individuals a further range of rights enforceable in civil law, separate from their rights in anti-discrimination law and the state’s capacity to bring criminal proceedings. Some of these rights can be pursued in civil lawsuits against individuals and employers for sexual harassment. For example, an individual may be liable for battery for intentionally causing harmful or offensive physical interference with another’s body. An individual may also be liable for breach of duty, enabling a victim to sue for compensation when further losses have crystallised, such as the nature and extent of psychological injury, and the victim’s economic loss.15
Employers have a positive obligation to provide a safe workplace for employees, including an environment free of sexual harassment.16 In the branch of tort law known as negligence, employers owe employees a duty of care to prevent damage being suffered. An employer will be liable for breaching its duty of care to a harassed employee if the employer knows, or ought to know, of an employee’s propensity to harass other employees, does not take reasonable steps to prevent further offending, and the individual offender subsequently causes damage to the harassed employee.
Contract law
Employment contracts contain an implied duty requiring the employer not to engage in conduct likely to damage the relationship of trust between employer and employee.17 Connected with this is an implied term to provide a safe work environment free of sexual harassment.17 These terms may support an action for breach of contract against the employer where an employee experiences sexual harassment by another employee.
Where a person resigns because sexual harassment makes the workplace intolerable, a court or the Fair Work Commission may find the person has been subject to “constructive” dismissal. That is, workplace conditions gave the employee no reasonable alternative but to resign. Such indirect forced dismissal warrants compensation from the employer for lost remuneration. Finally, if an employee complains about harassment and resigns because of subsequent pressure or victimisation, this may constitute an additional contractual breach and a separate breach of anti-discrimination legislation (Box 2).
Professional standards
Professional codes of conduct establish clear professional and ethical responsibilities to treat colleagues with fairness and respect. These responsibilities are established for all doctors in the code of conduct of the Medical Board of Australia (Box 3).18 Other codes reinforce these profession-wide duties. The code of ethics of the Australian Medical Association urges doctors to recognise that their conduct may affect the profession’s reputation, and encourages reports of colleagues’ unprofessional conduct (clause 2.1).19
Many professional colleges address harassment in their codes of conduct. For example, the Royal Australasian College of Surgeons’ code of conduct requires surgeons to “eradicate bullying or harassment from the workplace” (clause 4.1.6).20 This code states that surgeons, by virtue of their position, should be role models for those they supervise and teach (clause 10) and are prohibited from seeking intimate relationships with trainees under their supervision (clause 10.1). Sexual harassment is prohibited by other colleges’ codes of conduct, including those of the Royal Australasian College of Physicians21 and the Australian and New Zealand College of Anaesthetists.22
Serious breaches of standards may result in notifications to the Medical Board. Under the Health Practitioner Regulation National Law, which has been enacted in every Australian state and territory, practitioners and employers must notify cases where a practitioner engages in “sexual misconduct in the practice of the profession”. Although this usually arises when practitioners breach boundaries with patients, sexual assault of colleagues has been reported to the Australian Health Practitioner Regulation Agency under these provisions or the voluntary notification provisions for unprofessional conduct.
In serious cases, tribunals can suspend or deregister practitioners for misconduct, including for repeated instances of unprofessional conduct or conduct inconsistent with being a fit and proper person to hold registration.
Conclusion
Sexual harassment is illegal and unethical. Prohibitions in Australian laws and codes of conduct are clear. Practitioners face serious consequences for committing sexual harassment, and employers can be liable for failing to take preventive action.
Nonetheless, sexual harassment of women in medicine remains a serious concern in training and clinical settings, but complaints are rare. This suggests that the problem requires cultural change rather than legal reform. A potent alloy of gender inequality, normalisation of inappropriate conduct, professional monopolies and powerful hierarchies combine to create a culture that shields offenders and silences victims.
We suggest that culture change requires a five-pronged approach. First, we need a clearer understanding of the nature and scope of the problem, its effects and potential impacts on clinical care. Many acknowledge the gravity of the problem, but others contend that concerns are infrequent and historical. The establishment of the new Royal Australasian College of Surgeons Advisory Group, which will review policies, establish a reporting framework for harassment and explore problems of gender balance, is a welcome development.
Second, we need to educate students, practitioners, employers and boards about their responsibilities. Improved knowledge can influence attitudinal and behavioural change: the goal is for doctors to cease the sexual harassment of students and colleagues. In designing educational programs, Australia may benefit from the experience of Canadian colleges, which have provided sexual harassment training for 2 decades.23 Other helpful tools may include the Victorian Equal Opportunity and Human Rights Commission’s recommendations for reform of the legal profession, directed partly at preventing sexual harassment.24
Third, health practitioners should have access to a sound complaint mechanism. However, this alone is insufficient and does not mean that victims are responsible for resolving the problem. Victims should not simply be ordered to “speak up”, as this ignores factors that impede disclosure, and leaves undisturbed the power imbalances, gender discrimination and tolerance of inappropriate conduct which foster the problem.
Fourth, we should recognise and support individuals and employers who promote respectful work environments. It takes courage for victims and bystanders to speak up about sexual harassment. Employers who set new standards of conduct demonstrate leadership and integrity. An environment that unequivocally supports women and rejects harassment can powerfully influence the behaviour of perpetrators, the careers and wellbeing of women, and the “hidden curriculum”25 communicated to students and trainees.
Finally, the medical profession can nurture wider efforts to promote women’s rights through its status in society and its broad interaction with the population. By modelling a commitment to gender equality and women’s rights to safety and dignity in the workplace, the medical profession can embody what should be core aspirations in contemporary Australia.
1
Sexual harassment as a criminal offence in Australian states and territories
- The offence of sexual assault or indecent assault exists in each state and territory, with substantial penalties: Crimes Act 1900 (ACT) s 60 (7 years); Crimes Act 1900 (NSW) s 61L (5 years); Criminal Code (NT) s 188(2)(k) (5 years); Criminal Code 1899 (Qld) s 352 (10 years); Criminal Law Consolidation Act 1935 (SA) s 56 (8 years); Criminal Code Act 1924 (Tas) s 127 (21 years: s 389); Crimes Act 1958 (Vic) s 39 (10 years); Criminal Code Act Compilation Act 1913 (WA) s 323 (5 years).
- Consent only exists if freely given and will not be present if obtained by threat, force or abuse of position: ACT s 67; NSW s 61HA; NT s 187(a); Qld s 348; SA s 46; Tas s 2A; Vic s 36; WA s 319.
- Consent is not shown simply by lack of physical resistance: ACT s 67(2); NT s 192A(a); Vic 37AAA(e); WA s 319(2)(b).
2
Sexual harassment as discrimination in Australian states and territories
- Sexual harassment can be constituted by a single act. It is generally defined as unwelcome sexual conduct in relation to the other person, committed in circumstances where a reasonable person would have anticipated the other person would be offended, humiliated or intimidated: Discrimination Act 1991 (ACT) s 58(1); Anti-Discrimination Act 1977 (NSW) s 22A ; Anti-Discrimination Act 1992 (NT) s 22; Anti-Discrimination Act 1991 (Qld) s 119; Equal Opportunity Act 1984 (SA) s 87(9); Anti-Discrimination Act 1998 (Tas) s 17(3); Equal Opportunity Act 2010 (Vic) s 92; Equal Opportunity Act 1984 (WA) s 24(3-4).
- Sexual harassment is prohibited, with substantial penalties for the individual offender: ACT s 58; NSW s 22B; NT s 22(2); Qld s 119; SA s 87(1); Tas s 17(2); Vic s 93; WA s 24(1).
- Substantial penalties can also be imposed on an employer, who will be vicariously liable unless appropriate preventive steps were taken: ACT s 121A; NSW s 53; NT s 105; Qld s 133(2); SA s 91; Tas s 104; Vic ss 109-110; WA s 161.
3 Sexual harassment as a breach of good medical practice
Under Good medical practice: a code of conduct for doctors in Australia,18 “good medical practice” includes:
- Communicating professionally, respectfully and courteously with colleagues (clause 4.2)
- Understanding the nature and consequences of harassment, and seeking to eliminate such behaviour in the workplace (clause 4.4)
- Acting as a positive role model and supporting students and practitioners (clause 4.4)
[Correspondence] Prevention of violence against women and girls at the community level
In their Series paper on lessons from practice (April 25, p 1672),1 Lori Michau and colleagues emphasised the importance of social, cultural, and political interactions to prevent violence against women and girls. This approach is especially important for developing countries where many women are in abusive relationships. Although laws have the potential to prevent violence, such violent relationships can continue owing to absence of support after a separation, social stigma, and economic hardships, and put women in greater danger.
Intern system needs upgrade, not overhaul
Calls to dump the current medical intern training system and replace it with a two-year prevocational program or absorb it in the final year of medical school are ill-considered and unnecessary, the AMA has told a Government inquiry.
In a submission to the Council of Australian Governments’ Health Council National Review of Medical Intern Training, the AMA argued that although aspects of the current intern system could be improved, any changes should be incremental and underpinned by evidence.
AMA President Professor Brian Owler and AMA Council of Doctors in Training Chair Dr Danika Thiemt told the review there was nothing to show that a wholesale overhaul of existing arrangements was warranted.
“It is hard for us to agree that the current internship model is flawed when there is so much variety and flexibility across Australia, and when the calibre of doctors in training emerging are world-class and are regarded as such,” they said. “That is not to say there is no room for improvement, but we do not believe this has to take the shape of frame-breaking change, and any change should be informed by a strong evidence base.”
More from Australian Medicine: Plan for the future, no more piecemeal cuts: Owler
The COAG review is being conducted amid expectations a growing number of medical graduates will miss out on an internship place this year as Federal and State governments squabble over funding and responsibility.
A national audit found that there was a shortfall of 366 intern places this year, and Australian Medical Students’ Association President James Lawler said anecdotal reports indicated there would not be enough places in 2016.
“This is a bittersweet time for medical students around the country, with excitement at their internship offers conflicting with the fact that they are now competing for training places in a system that is already overwhelmed,” Mr Lawler said.
The review has been asked to examine four options, ranging from leaving the system as-is, to increasing intern term periods, establishing a two-year UK-style prevocational training program or drawing internship-like duties back into the final year of medical school.
In their submission, Professor Owler and Dr Thiemt argued strongly against the latter two options.
“The AMA believes there is no evidence to support radical changes to the structure of the internship along the lines suggested in [these] options,” they wrote. “These options are unrealistic, would require a significant investment of resources, including cost and additional supervisor input, and may result in unintended negative consequences. In any case, it is unlikely that cash-strapped jurisdictions would be in any position to fund them.”
The AMA leaders said the UK-style model might be superficially attractive, but there was no evidence that it would deliver any improvement on current arrangements, while the type of learning gained through university education was “very different” from that provided in a workplace, where interns are required to make decisions about care, albeit under supervision.
More from Australian Medicine: IT investment key to health savings
“There is no evidence to show that the current model of internship in Australia is ‘broken’, or that radical changes to its structure are required,” Professor Owler said. “The current model of intern training in Australia has served the community well. Instead of sweeping changes, we need to build on what works.”
But he said the review had highlighted a lack of data surrounding the quality and effectiveness of the intern year in preparing junior doctors for independent practice, and the AMA has proposed that remedying this be a priority.
“The AMA believes the review must propose new systems to provide better information on the quality of medical intern training, the transition from medical school to intern training, and in the remaining prevocational and vocational training years,” the AMA President said.
The AMA has recommended there be a national survey of medical training, similar to the survey that the General Medical Council undertakes in the United Kingdom.
Adrian Rollins