Defining deviation: The peer professional opinion defence and its relationship to scope expansion and emerging non-medical health professions

Publication Type:
Journal Article
Journal of Law and Medicine, 2016, 23 (3), pp. 662 - 677
Issue Date:
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© 2016 Thomson Head Office. All rights reserved. The law imposes a duty to exercise reasonable care and skill in the provision of professional advice and treatment on all health practitioners, which in Australia is assessed via a modified Bolam principle. In an era of medical dominance, this standard was clearly related to the standards of the medical profession. However, the evolving nature of the Australian health workforce has fuelled speculation as to how non-medical professions are assessed to be practising in accordance with established standards. This article explores the peerprofessional defence in relation to new, emerging and established non-medical professions practising in areas that were not historically part of their remit, and finds that individual health professions-even those which do not possess traits historically defined by professionalism-have ultimate discretion in determining the standards by which they are assessed, though such standards may be rejected by courts if they are deemed irrational.
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