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Section 5O (5 Capital O) of the Civil Liability Act 2002 provides professional people, including medical practitioners, with a defence to claims of negligence. The section provides that a person practising a profession does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by rational peer professional opinion as competent professional practice.
The defendant has to burden of proving this defence on the balance of probabilities, but any person making a claim of medical negligence must take this section into account.
When Section 5O was enacted, some commentators remarked that this was a return to an old rule in old case law. The rule was often summarised as saying “If all of the doctors are negligent, none of them are!” The Judges had over-ruled the old case law, saying that it was for the community, through it's Judges, to determine professional standards. It was not for the professions to determine their own standards. But the old rule has now been re-introduced by the NSW Parliament by the enactment of Section 5O. Once again, it can be said that if all of a profession are negligent, none of them are. If you think that professional standards should be determined by the community, and not by the professions themselves, write to the NSW Attorney-General requesting that Section 5O be repealed.
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