Page 2714 - Week 09 - Wednesday, 26 September 2007
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When people are claiming that they need assistance to cover some expense of raising a child which they had not planned for, they must use the language of the law. They must therefore seek damages, and this is not really a word that is easily and dispassionately applied to a living being—a child. Further, they must identify a person or an institution which caused the damages and seek compensation from them or their insurance agency. Finally, Mr Speaker, all this must be done in the public arena where every Tom, Dick and Harry has a right to their opinion, the right to be a judge. It must seem as though the real judge’s decision, when it is finally made, is bound to be an anticlimax; never mind the law.
This is the atmosphere, Mr Speaker, in which we are debating this bill. I do not believe it is the right context for the grave discussions that we are having today. There are likely to be many opinions and not enough cool, detached consideration of the bill as law, or, more precisely, an amendment to the existing law. Public debate is clouded by passionately held interests or opinions. For instance, the AMA has argued that the ACT will become a litigation tourist destination if this bill does not get up. The ACT AMA President, Dr Andrew Foote, was quoted in the Australian as saying that this couple became tourists and came back to the ACT to mount this case, so now we have the dubious reputation of being a litigation tourism destination. Well, Mr Speaker, the procedure did take place in the ACT, and the obstetrician is based in Canberra, so it is more than a bit misleading to suggest that the couple just became tourists and chose the ACT in which to bring their case. As the Attorney-General has explained, the court has a discretion to reject cases that do not have a sufficient connection to the ACT, and it is highly unlikely that cases that are not able to demonstrate such a connection will be brought in the ACT.
Dr Foote is also quoted as saying that he does not think that a healthy baby is a damage. No-one is saying that a healthy baby is a damage, and it is mischievous and misleading for the proponents of this bill to suggest that this is the case. I do have to suspect that in supporting this bill Dr Foote is actually representing the self-interests of medical specialists who do not want to be exposed to damages claims for medical negligence.
I understand that if this bill were to be passed, then the ACT would be stuck with the same ambiguities that beset the law in New South Wales, where parents seeking compensation are left arguing over whether a handicapped child’s injuries are the result of medical negligence or an act of God, or, indeed, whether the child’s physical and mental condition amounts to an actual handicap—and these are vexed issues, which Mr Corbell has touched upon.
These sorts of consequences are why medical specialists have to obtain medical negligence insurance cover, and this is how our society, whether we like it or not, allocates the costs of the consequences of a wide variety of professional negligences. I have not heard any arguments that convince me that we should discriminate to remove the cause of action to claim compensation for the consequences of this particular form of medical negligence.
For many, this law is an appropriate expression of the disapproval of the temerity of those women—women, so far—who have dared to declare publicly, as they must,
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