On suing your doctor, legal strategy, gagging and logic.
Doctors interest me. More so than ever before.
The old me had come to see them, GPs mainly, as anti-biotic pushers, and I’d settled on a slow simmering resentment of their commoditised and frankly valueless service offering.
They left university with a hammer and saw only nails. Yes, I know there are exceptions, but I’m talking about the rule here. The profession has been hollowed out.
It had never crossed my mind that doctors could be the foot soldiers of bio-medical authoritarianism. I’d obviously never understood Germany in the 30s.
It also never occurred to me that Australia could flip, from democracy to dictatorship. And that it’s doctors would be the “profession” that flipped it.
Anyway, I know a bit better now.
I also hadn’t realised that there were so many employed in the “health” sector.
I found this passage from the article that broke the story stunning:
The Australian Health Practitioner Regulation Agency (AHPRA), which oversees Australia’s 800,000 registered practitioners and 193,800 students, last year warned that anyone who sought to “undermine” the national Covid vaccine rollout could face deregistration or even prosecution.
I had no idea there were that many!
About 1,000,000 (yes that’s one million!) people in Australia under the thumb of a government agency that can end their career by using a “code of conduct” if they step out of line and “contribute to vaccine hesitancy”.
Australia only has 25 million people.
That is 1 of these “controlled priesthood” for every 25 men, women, children, and babies on this island.
That is a simply stunning ratio. To the extent that you want to understand the shape of authoritarian medical tyranny in Australia, that is the ratio that can help you understand it.
I also hadn’t realised that Australian doctors had been suspended for standing up against medical tyranny and mandatory childhood vaccination.
Drs John Piesse (Victoria) and Kevin Coleman (NSW) were suspended in 2017 for criticising ‘No Jab No Play’ State laws and the childhood vaccination schedule in public. Their suspensions prove the rule that doctors must not criticise vaccines preceded Covid-19. When APHRA told doctors they are gagged on the experimental Covid-19 vaccine APHRA was effectively telling them the gag they all accept on approved vaccines also applies to these experimental vaccines.
It turns out there is a long history of gagging doctors in Australia. A long history of gagging the troops.
Not every medical soldier wants to inflict lies, pain and suffering on their fellow citizens, their patients. Some of them actually believe in treating the patient in front of them, and in medical freedom and bodily sovereignty. Those that hold these ideas and have the courage to say and do something about it, need to be gagged, or chased out of medicine.
But let’s start off with a recent announcement from the Australian Medical Professional’s Society on 11 January 2023, reminding doctors that they are NOT indemnified for an action related to Covid-19 vaccination.
Administering of COVID-19 vaccination is likely not an indemnified action – this is notice of your obligations, rights, and potential risks.
On 2 July 2021 and 28 August 2021, the former Federal Government announced a proposed medical indemnity scheme for health professionals administering the COVID-19 vaccines. Recent correspondence from government advisers outlines that such an indemnity scheme was never established per se.
Unlike the case with manufacturers of COVID-19 vaccines, there appears to be no government liability protection beyond the vaccine injury ‘COVID-19 vaccine claims scheme’.
Government and AHPRA correspondence outline practitioners’ obligations to obtain informed consent. AHPRA defines informed consent in section 4.5 of the Good Medical Practice Code of Conduct. It is “a person’s voluntary decision about health care that is made with knowledge and understanding of the benefits and risks involved.”
I suspect a lot of doctors are sleeping well, under the false illusion that the government has provided them with a liability shield. Hopefully, as the word gets out, their sleep is disturbed.
Now, with that out of the way.
Australian doctors must follow the Code of Conduct written by the Medical Board of Australia (MBA):
Failure to comply with it can lead to a doctor being deregistered. The Australian Medical Association has stated that the Code is ‘legally binding’.
It’s important to note that doctors accepted the rules imposed by the MBA on vaccination decades before Covid-19 which perhaps explains why there are no books by registered, practicing Australian doctors in which they criticise vaccines.
It appears that doctors in Australia are not allowed to refuse to vaccinate if they have a conscientious objection.
There are three words commonly used in medicine that have distinct meanings and are not interchangeable.
‘Procedure’ means a series of steps taken to accomplish an end.
‘Treatment’ means the application of remedies for a disease that a person has developed or an injury they have received.
‘Preventative’ means measures to protect a person from a disease to which he or she may later be exposed or a condition he or she may later develop.
Treatments are given to people who are already ill or injured. Preventatives are given to people who are healthy to reduce the likelihood of their becoming ill. Both preventatives and treatments are procedures.
The Code of Conduct has an obligation on conscientious objection:
3.4.6 Decisions about access to medical care
Being aware of your right to not provide or directly participate in treatments to which you conscientiously object, informing your patients and, if relevant, colleagues of your objection, and not using your objection to impede access to treatments that are legal.
By using the word‘treatment’instead of ‘procedure’ the MBA denies doctors the right to conscientiously object to carrying out procedures that are preventative. Doctors interpret this statement accurately if they interpret it to mean that they must support and participate in vaccination, that if they did not, they could be deregistered.
And it has this obligation:
7.4 Public health
Doctors have a responsibility to promote the health of the community through disease prevention and control, education and screening. Good medical practice involves:
- 7.4.1 Understanding the principles of public health, including health education, health promotion, disease prevention and control and screening.
- 7.4.2 Participating in efforts to promote the health of the community and being aware of your obligations in disease prevention, screening and reporting notifiable diseases.
If a doctor wanted to know what these ‘obligations in disease prevention’are they can’t find answers in the Code of Conduct because it doesn’t explain them. So doctors have to comply with these obligations without knowing what they are and can be deregistered if they don’t.
And it has this obligation:
2.2 Public comment and trust in the profession
The community trusts the medical profession. Every doctor has a responsibility to behave ethically to justify this trust.
While there are professional values that underpin good medical practice, all doctors have a right to have and express their personal views and values. However, the boundary between a doctor’s personal and public profile can be blurred. As a doctor, you need to consider the effect of your public comments and your actions outside work, including online, related to medical and clinical issues, and how they reflect on your role as a doctor and on the reputation of the profession.
But wait, there’s more! It has this obligation, which puts doctors between a rock and a hard place:
1.3 What the code does not do
This code is not a substitute for the provisions of legislation and case law. If there is any conflict between this code and the law, the law takes precedence.
Despite the MBA having sufficient resources to ensure that their Code of Conduct does not conflict with the law it is the doctor’s responsibility, individually, to seek advice from lawyers on whether legislation or case law conflict with the Code of Conduct and to ignore the statements in the Code of Conduct which are overruled by law.
Have doctors who disagree with government vaccination recommendations spoken to their union about the BMA’s Code of Conduct? The Australian Medical Association represents the views of Australian doctors. The AMA issued a policy document on ‘Conscientious Objection’ in 2013 whichstates:
Point One: Doctors (medical practitioners) are entitled to have their own beliefs and values, as are all members of society. There may be times, however, where a doctor’s personal beliefs conflict with their peer-based professional practice. In exceptional circumstances, and as a last resort, a doctor may refuse to provide or participate in certain medical treatments or procedures that conflict with his or her own personal beliefs.
Point Seven: A doctor who has a conscientious objection should not be treated unfairly or discriminated against.
So, it appears that the AMA does not agree with the MBA policy on conscientious objection obligation. The AMA also issued a Code of Ethics (2004, revised 2006) which includes the following points:
Section 3: Professional Independence.
Point one: In order to provide high quality healthcare, you must safeguard clinical independence and professional integrity from increased demands of society, third parties, individual patients and governments.
Point four: Recognise your right to refuse to carry out services which you consider to be professionally unethical, against your moral convictions, imposed on you for either administrative reasons or for financial gain or which you consider are not in the best interest of the patient.
These policy statements have not helped doctors who disagree with government vaccination policy because the MBA Code of Conduct is legally binding and must be followed regardless of the AMA‘s opinion. This situation exists in Australia partly because, unlike the UK, USA and New Zealand, in Australia fundamental human rights like the right to free speech are not protected by law.
If the MBA’s Code of Conduct is the rock, the hard place is case law. Australian doctors can be sued by patients and parents of patients harmed by vaccines.
How can patients sue doctors in the UK and Australia for negligence if their doctor has advised them to follow national vaccination recommendations?
In the UK the Law Lords, now the Supreme Court, gave judges the right to over-rule standard medical opinion and this right was then adopted in Australia. Although judges may be greatly influenced by the fact that vaccination is common and that many, many doctors all over the world recommend vaccines, a judge in the UK or Australia has the right to decide whether government vaccination recommendations are rational and logical. If a judge decides they are irrational, illogical, the patient whose case they were considering would win their medical negligence lawsuit.
Three important lawsuits in the UK are relevant to all medical procedures, including vaccination.
In Bolam versus Friern Barnet Management Committee, 1957; a patient suffered severe injuries as a result of receiving Electro Convulsant Therapy without muscle relaxants. The judge ruled that the doctor had not been negligent and noted that ‘A doctor is not guilty of negligence if he has acted in accordance with a practise accepted as proper by a responsible body of medical men skilled in that particular art.’
In Sidaway versus Bethlem Royal Hospital Governors, 1985; a patient was left with paralysis after an operation to relieve a trapped nerve. The patient claimed negligence as she had not been informed of the risk of this outcome. The judge rejected the patient’s claim as a respectable body of medical opinion agreed that it was not necessary to warn a patient of every risk. The case did, however, establish in English common law that a doctor has a duty to provide to their patients with sufficient information for them to reach a balanced judgement. Patients must be informed how necessary a procedure is, what the alternatives are, and what the common or serious consequences are. If a patient is not properly informed and suffers harm as a result of the procedure, the doctor will be liable for negligence. The Sidaway judgement also stated that it was open to the courts to decide that information about a particular risk was so obviously necessary that it would be negligent not to provide it, even if a ‘responsible body’ of medical opinion would not have done so.
InBolitho and others versus City and Hackney Health Authority, 1997; a boy had breathing difficulties and the doctors did not ‘intubate’ him and he died. Their defence was that their decision not to intubate would have been made by many doctors. The House of Lords (now called the Supreme Court) decided that there would have to be a logical basis for the opinion not to intubate which would involve weighing risks against benefits and that a judge could reject a medical opinion which is ‘logically indefensible’.
The Court did not specify in what circumstances it would be prepared to hold that the doctor had breached his duty of care by following a practice supported by a body of professional opinion other than stating that such a case will be rare.
‘…in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence… In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible.’
The Bolitho Test, which has been incorporated into law in every State and Territory, will be applied to a vaccine recommendation. It could have been applied to the recommendation to give babies an untested combination of dozens of doses of vaccines, but as far as I know hasn’t been.
The Bolitho Test is explained here by The UK Centre for Medico-Legal Studies:
The importance of logic
Patrick Bolitho’s case led to a number of appeals, and while the decision regarding negligence was not overturned, these appeals did change how the Bolam Test was perceived in the eyes of the Court.
In the course of these appeals, it was asserted by the plaintiff that “the views of the defendant’s experts simply were not logical or sensible.” More specifically, the plaintiff claimed that:
Given the recent and the more remote history of Patrick’s illness, culminating in these two episodes, surely it was unreasonable and illogical not to anticipate the recurrence of a life-threatening event and take the step which it was acknowledged would probably have saved Patrick from harm [intubation]? This was the safe option, whatever was suspected as the cause, or even if the cause was thought to be a mystery.
When this appeal was heard in the House of Lords, the presiding Lord stated that he agreed “with these submissions to the extent that… the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts.” He further stated that:
The Court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis.
Nowadays, this statement forms the basis of the Bolitho Test. As demonstrated, it dictates that, while it may be possible to find a number of medical professionals who argue that they would have acted in a particular way, it is the responsibility of the Court to determine whether or not that particular course of action would have been logical. This condition is now a key part of any Court’s decision in cases of medical negligence.
In Australia, the principle, that doctors cannot defend themselves in a lawsuit on the basis that the majority of doctors would have made the same recommendation, if it was not also reasonable or logical to carry out the procedure, is written into legislation in every State and Territory.
So, in both the UK and Australia even if every doctor recommends patients follow government vaccination recommendations an individual doctor can be found to have acted negligently IF a judge decides that following the recommendations was not reasonable and logical.
Regardless of how Australian doctors are gagged, regardless of the fact they accepted the gag, in a time of peace and long before the pandemic (with childhood vaccination), the point of this article and its message is: if your child was injured by vaccines recommended by your GP, and the evidence available to your GP when they recommended the vaccines shows it was not a logical recommendation, you may have a pathway to sue your GP. This applies to the Covid-19 vaccines and to the untested combination of 30 – 40 doses of a dozen vaccines routinely recommended for children.
Here is a caveat, but honestly is one really needed; I am not a medical negligence lawyer. I’m not even a doctor, but we are left trying to do the work that doctors, lawyers and investigative journalists have all abandoned.
So, I’d like to end with a call to any Australian medical negligence lawyers, surely there is one who cares about protecting children from abuse by doctors who poison them for profit and to keep their jobs? If that is you, contact me, help me explain to families who followed the vaccine advice of their GPs and are now caring for vaccine injured loved ones how they can start a medical negligence lawsuit and get compensation from their GP’s professional indemnity insurer.