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          Risk of negligent treatment of prisoners if PBS drugs unavailable: Australian Legal Update

          A recent New South Wales Coroner’s finding, on 9 February 2018, following an inquest into the death of a person in custody highlights a potential risk for health service providers. 

          Date: 23/02/2018

          Background

          On 1 October 2015 the Patient died of metastatic prostate cancer. The Patient had been serving a custodial sentence at the time of death and therefore it was the State’s responsibility for ensuring he received adequate health care and treatment.

          The issue raised prior to the inquest by the patient’s treating oncologist, Dr Elizabeth Hovey, was that the Patient had not been able to access a cancer treatment that was otherwise available to public patients with a subsidy from the Commonwealth Government’s Pharmaceutical Benefits Scheme (PBS). 

          Dr Hovey provided a report dated 17 June 2015 in support of the Patient’s early release from prison application. In her report she explained his complex palliative care and analgesia requirements. She had treated the Patient’s cancer in the early months of 2015 with the drug docetaxel, but by May 2015, Dr Hovey went on to state that had the Patient not been in custody:

          “..we would have commenced him on a new generation hormone therapy called enzalutamide which is on the PBS, however prison inmates in the medical unit at Long Bay are not covered by the PBS and it is my understanding that the medical oncology unit would have had to bear the cost of the enzalutamide which we do not have the budget for as it involves thousands of dollars ….In view of this we recommended the use of a more old fashioned chemotherapy drug called oral cyclophosphamide…’

          Dr Hovey went on to state: “I have no doubt that he would be better served being out in the community in terms of both our therapeutic choices and level of care.”

          Dr Hovey’s assertion highlights a potential risk exposure for the State and potentially for treatment providers, where the provider does not prescribe incarcerated patients necessary and required medication because they are not funded by the PBS and that medication would otherwise be available and prescribed to community patients. 

          The Coroner reported that in light of Dr Hovey’s assertions a central issue in the inquiry was whether the level of care available to the Patient was less than that regarded as adequate for patients not in custody. 

          In assessing this issue the Coroner focused specifically on whether the enzalutamide medication would have been appropriate treatment for the Patient and whether it would have been prescribed if the Patient had been in the community. The Coroner sought the opinion of Dr Hovey on these points. Dr Hovey provided a report to the Coroner dated 27 September 2017.

          In response to whether enzalutamide would have been appropriate treatment for the Patient Dr Hovey opined:

          • Enzalutamide was considered as a potential treatment for the Patient. The appropriate time for consideration of it was following completion of the docetaxel therapy. 
          • Dr Hovey discussed with the Prince of Wales Medical Oncology Team the possibility of arranging oral enzalutamide for the Patient. She was informed by a colleague that as he was a prisoner a PBS authority script could not be written for him; nor would the Hospital’s Oncology Department be able to meet the cost of the drug. 
          • She was unable to recall to what extent she escalated her request for consideration of enzalutamide.
            In response to whether she would have prescribed enzalutamide if the Patient had been in the community Dr Hovey opined:
          • In her 15 years of using palliative cyclophosphamide [the medication provided to the Patient] she had had good results; therefore on reflection there was a high chance she would have decided to administer cyclophosphamide to the Patient prior to considering enzalutamide, even if he had been in the community.
          • Although enzalutamide was a relatively new drug with promising results, the decision as to what therapeutic option to use in his case would have been “more complex and nuanced” and enzalutamide “might not in fact have been the first choice post-docetaxel depending on his clinical status at the time”.

          Dr Hovey further opined to the Coroner that the treatment provided to the Patient was clinically appropriate and that his death could not have been prevented by treatment with enzalutamide nor did he receive inferior treatment without it. 

          Accordingly, the Coroner found that there was no evidence to support the assertion that because of his ineligibility for the PBS subsidy for enzalutamide, the Patient received inferior treatment for his prostate cancer to that which he would have received had he not been a prisoner.

          Conclusion

          The take away point is that the Coroner’s findings may have been different if it was found that the medication which was unavailable to the prisoner, due to a lack of funding, would have provided the Patient the chance at a better outcome. 

          Notwithstanding the Coroner’s findings, the non-provision of particular medications to prisoners that would otherwise be prescribed to community patients potentially exposes the State and treatment provider to medical negligence claims. 

          Coroners Court of New South Wales, Findings of Inquest: Inquest into the death of Ian James McAuliffe, File No: 2015/288035, viewed on 21 February 2018, http://www.coroners.justice.nsw.gov.au/Documents/Findings%20Ian%20McAuliffe.pdf

          Related people

          Hamish Broadbent

          • Principal Lawyer