Criminal Law Week 7C PDF

Criminal Law Learning Outcomes NUR1113 Weekly Learning Outcomes a) On completion of this week's online activities, you will be able to: b) Discuss the features which distinguish criminal law from civil law c) Describe the elements of a crime d) Discuss circumstances in which healthcare delivery ma...

Criminal Law Learning Outcomes NUR1113 Weekly Learning Outcomes a) On completion of this week's online activities, you will be able to: b) Discuss the features which distinguish criminal law from civil law c) Describe the elements of a crime d) Discuss circumstances in which healthcare delivery may be associated with homicide e) Understand the principle of ‘double effect’ f) Identify the role and functions of the coroner g) Describe the distinguishing features of a coroner’s court h) Explain ‘reportable deaths’ and ‘reviewable deaths’ i) Understand the relevance of a coroner’s inquest for nurses and midwives Content warning Some of the content in this lecture may be illicit a strong or potentially harmful emotional response. Please be aware that there are a number of resources available to you if this occurs https://www.monash.edu/health/counselling Recap Australian Legal System Two sources of Law Legislation – Parliamentary Law Judge made – Common Law Criminal Law cf Civil Law Criminal Law – Crimes Act 1958 Community prosecuting an individual who has broken the rules of society Murder Sexual assault Theft Violence Civil law – Wrongs Act 1958 Disputes between two or more individuals Suffered a Wrong Criminal Law cf Civil Law Adversarial and inquisitorial systems – Court processes Adversarial Criminal matters v Civil matters Criminal – Homicide rape assault Purpose is to punish Civil Negligence Trespass to the person Purpose is to compensate Natural justice Presumption of innocence Inquisitorial Coroners Court Criminal Law cf Civil Law Terminology Who brings an action Criminal State initiated – Police Civil Initiated by the person wronged Individual citizens/Corporations The parties Criminal – Crown Prosecutor/Accused Civil – Plaintiff/Defendant Standard of proof Criminal - Beyond reasonable doubt (>99.9%) Civil – Balance of Probabilities (>51%) What’s the difference? CRIMINAL LAW CIVIL LAW Concerned with protecting society as a Disputes and disagreements between whole people or groups A crime against the state Public wrongs Private matters Initiated by the State Initiated by the person who suffers the harm Penalty – Incarceration, Fine Penalty – monetary compensation Criminal code – Crimes Act which sets out Addresses several areas the actions that are considered to be Family, Industrial, land/property, workers criminal compensation and tort law. Include murder, manslaughter, infanticide, Burglary, theft, etc Action initiated by the state /prosecution Action initiated by the plaintiff for a wrong against the accused for an offence committed against them by the defendant. committed Criminal Law A set of rules of behaviour which are backed by a sanction of punishment Crimes committed against the State rather than individuals Developed in common law & Various legislation e.g. Crimes Act 1958 (Vic) Criminal Law Criminal offences must be established by law prior to a charge Actus reus & Mens rea One cannot be vicariously guilty in criminal law The precise act for which one is charged must have been committed Presumption of innocence Ignorance of the law is no excuse Criminal Law Actus reus act of the offence The activity or conduct that constitutes the offence The physical act constituting the crime Voluntary, omission, causation Mens rea the mental intention to carry out the offence Intent, recklessness or negligence at the time the crime was committed the prosecution must establish that the accused deliberately performed the unlawful act Criminal Law Homicide Homicide is the unlawful killing of another person (includes Murder /Manslaughter) Common law definition dates from 1797: Murder is where a man of sound memory & of the age of discretion unlawfully kills any reasonable creature in being under the King’s peace, with malice aforethought… so as the party wounded or hurt dies within a year & a day after the same. Murder is where there is intent to kill Criminal Law Homicide Actus reus – wounds or hurts (the physical act – act/omission, voluntary & causation) Mens rea - sound memory & of the age of discretion (the accused is legally competent & intends to OR recklessly does) No legal justification – unlawfully kills under the King’s peace (there is no war or justification to kill) Victim must be a human being - any reasonable creature in being (can’t be tried for murder if the victim isn’t a human) Unborn child Criminal Law Manslaughter Actus reus Human being No legal justification Mens rea is absent or varied - may be: Unlawful & dangerous act manslaughter (voluntary) – where the accused’s act was unlawful, dangerous & intended & was not acting in self defence Negligent M/S or M/S by omission (involuntary) – death occurred as a result of reckless/grossly negligent e.g. unlawful administration of medication causing death Criminal Law Defence Mental impairment (insanity) – e.g. the defendant was unable to understand the nature of the offence or trial or provide instructions Other defences pertinent to mental impairment *Diminished responsibility (NSW, ACT) *Automatism (Vic) Duress Criminal Law Defence Self-defence - the person believes that the conduct is necessary in self defence; and - the conduct is a reasonable response in the circumstances as the person perceives them. [Provocation – abolished as a defence to murder in Vic ] Self defence & Family violence the person is responding to a harm that is not immediate; or the response involves the use of force in excess of the force involved in the harm or threatened harm. https://www.alrc.gov.au/publication/family-violence-improving-legal-frameworks-alrc-cps-1/7-recognising-family- violence-in-criminal-law/family-violence-as-a-defence/ Criminal Law Suicide Crimes Act 1958 Sect 6A Suicide no longer a crime (1991 change) Crimes Act 1958 Sect 6B Survivor of suicide pact who kills deceased party is guilty of manslaughter Level 5 imprisonment (10 years max) Inciting a person to commit suicide and that person commits or attempts to commit suicide Indictable offence Liable to level 6 imprisonment (5 years max) Voluntary Assisted Dying Act 2017 Criminal Law Rape Committed when a person intentionally sexually penetrates another person without that person’s consent Penetration – the introduction to any extent of a penis into the mouth, vagina or anus, OR introduction by a person of an object or part of his/her body into the vagina or anus of another person… other than in the course of a procedure for medical or hygienic requirements Mobilio v R 1 VR 339; (1990) 50 A Crim R 170 Could the insertion of a suppository be considered rape? Remember the discussion about consent Criminal Law Rape Consent in this context means free agreement & does not include agreement where a person submits because of: force; fear of harm; being unlawfully detained; or the person is asleep, unconscious, or so affected by drugs or alcohol; or is incapable of understanding, or is mistaken re the nature of the act; or mistakenly believes the act is for medical or hygienic purposes. Criminal Law Abortion Abortion – is the premature expulsion of the contents of conception (distinguish from miscarriage) Until 2008 was unlawful s 65 Crimes Act 1958 (Vic) stated: …a woman with child who unlawfully administers a poison or noxious thing or uses any instrument or other means to procure an abortion…. liable to 15 yrs imprisonment Sec 66 supplying a poison to be employed….. R v Davidson 1969 VR 667 Menhennitt ruling Abortion may be lawful if necessary to protect the physical or mental health of the woman, provided it did not outweigh the danger which the abortion was designed to prevent Criminal Law Abortion Abortion Law Reform Act 2008 (Vic) Repeals the crime of abortion from the Crimes Act 1958, allows a medical practitioner to perform an abortion on a woman (the definition refers to a female of any age) who is not more than 24 weeks pregnant. After that time, two doctors must certify that they "reasonably believe that the abortion is appropriate in all the circumstances", with those circumstances encompassing "all relevant medical circumstances; and the woman's current and future physical, psychological and social circumstances Abortion performed by an unqualified person is a crime Criminal Law Abortion Pharmacists and nurses (includes midwives) can supply or administer drugs ‘to cause an abortion in a woman who is not more than 24 weeks pregnant’ If the woman is more than 24 weeks pregnant, the pharmacist or nurse are to be employed by a hospital (includes public, private or day procedure centre) and their actions must be on the written direction of a medical practitioner. It is therefore important that the registered pharmacist and nurse/midwife are satisfied that there has been consultation and agreement of two medical practitioners, and the medication orders are clearly written, before the procedure begins. Criminal Law Concealing the birth of a child Crimes Act 1958 (Vic) Section 67 If any woman has been delivered of a child, every person who by any secret disposition of the dead body of the child, whether the child died before or after birth, endeavours to conceal the birth, shall be guilty of a summary offence & liable for up to 6 months imprisonment Criminal Law Infanticide Crimes Act 1958 (Vic) section 6 Where a woman causes the death of her child in circumstances that would otherwise constitute murder & at the time of the conduct her mind was disturbed: Having not fully recovered from the effect of giving birth or developed a disorder consequent to her giving birth…. Within the preceding 2 years Actus reus must be satisfied Punished not for murder but infanticide = 5 yrs max, or jury may find not guilty due to mental impairment Criminal Law Female Genital Mutilation Crimes (Female Mutilation) Act 1996 (Vic) Defined by the WHO as “all procedures which involve partial or total removal of the external female genitalia or other injury to the female genital organs whether for cultural or any other non- therapeutic reasons” (August 1996) Legislation refers to a child & prohibits: removal of the clitoral hood of a girl or female baby removal of or cutting out of any part of the female genital area (‘excise’) stitching up of the genital area (‘infibulate’) cutting the clitoris or part thereof Criminal Law Female Genital Mutilation If the baby/child lives in Victoria it is illegal to have FGM performed on her in another country or another part of Australia. Penalties relate to the person who performs the procedure or arranges for someone else to perform the procedure. FGM constitutes physical abuse under the Children Youth & Families Act 2005 (Vic) thus the offence relates to mandatory reporting Criminal Law Euthanasia This is not a legal concept – historically/philosophically it means a ‘good death’ Some authors distinguish between ‘active’ or ‘passive’ euthanasia, although definitions vary Potentially: ‘Active’ euthanasia (to intentionally kill) is a crime in all jurisdictions and may be considered to be homicide ‘Passive’ euthanasia (to allow to die) less clear-cut, is it refusal/withdrawal of treatment OR homicide?? This is why a clear understanding of the Medical Treatment Planning and Decisions Act 2016 (Vic) is imperative Cases Murder Manslaughter Negligence/Murder R v Haines NSWSC 1812 If the wrong drug was administered intentionally with the intent to kill the patient, it would amount to murder Marie Darragh (82) and Isabella Spencer (77) complained about the standard of care received from nurse Megan Haines Haines killed them with injection of insulin. They were not insulin dependent. Both fell into a hypoglycaemic coma and had irreversible brain damage Garling, J said “Her conduct was deliberate and calculating. It was a gross breach of trust and a flagrant abuse of her power….. She clearly abused that position of trust. I consider this to be a significant aggravating factor” (in sentencing her to 27 years imprisonment. Negligence/Murder R v Haines NSWSC 1812 Haines was on probation after receiving complaints from previous nursing jobs Jury took 4 hours to arrive at a guilty verdict Sentenced to 36 years jail after being found guilty of murder Haines appealed – trial judge’s summing up was unfair to the defence Judge made various legal errors Trial barrister failed to take certain steps such as seeking separate trials. Appeal quashed this to be a significant aggravating factor” (in sentencing her to 27 years imprisonment. Negligence/ Manslaughter Unreported If a drug was given to a patient and the nurse thought it was the right drug but given with a degree of recklessness, or contraindications not observed and the patient died, it may amount to manslaughter. Nursing graduate Yueqiong Fu charged with manslaughter using poison to endanger life. Fu said she was following directions of a doctor but was seen entering and leaving the Tx room with supplies Fu was prohibited by HCCC from performing any health related occupation The doctor was unlicenced Ms Huang – cardiac arrest during procedure to inject dermal fillers in her breasts. Huang died http://www.abc.net.au/news/2017-09-08/yueqiong-fu- charged-with-manslaughter/8886182 Negligence/ Manslaughter Unreported Admitted to recklessly administering anaesthetic that endangered the life of Jean Huang Fu conceded she prepared several syringes filled with local anaesthetic as instructed by a doctor and later lied in writing to police. She told Sydney’s Downing Centre District Court on Friday she had never prepared anaesthetic but was using “Chinese thinking” by following everything the doctor told her. She said she had since learnt “I should have critical thinking” always. “Before I do anything, I should know what things I do and what things I can’t do,” Fu told the court on Friday. http://www.abc.net.au/news/2017-09-08/yueqiong-fu- charged-with-manslaughter/8886182 Negligence/ Manslaughter Unreported Chinese surgeon charged with manslaughter Fu was sentenced to a two-year community service work condition and will have to undergo psychological treatment. http://www.abc.net.au/news/2017-09-08/yueqiong-fu- charged-with-manslaughter/8886182 Negligence/ Manslaughter Unreported Nymphea Anderson Presented to St George hospital Jan 27 2009 with nausea, vomiting, a urinary tract infection, angina and dehydration. Extensive medical Hx High blood pressure and severe heart disease. Suffered Heart attack and not expected to survive Evening of 30 January, prognosis had improved. Difficulty swallowing Administration of medication IV https://www.smh.com.au/national/nsw/sydney-nurse-mavis-lopez-on-trial-for-manslaughter-after-injecting-patient-nymphea-anderson- with-oral-medication-20150221-13kzqs.htmldf http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWNMT/2008/24.html https://www.caselaw.nsw.gov.au/decision/54a63cda3004de94513dba67 Negligence/ Manslaughter Unreported Medication was oral Tablets crushed and administered oral medication via IV drip Sydney nurse accused of manslaughter by administering oral medication via and IV drip "So, without checking with a registered nurse or anyone else for that matter, the accused crushed three medications (being tablets or parts thereof) added about 10ml saline and drew the mixture into a syringe before adding it to a burette containing 100ml of the deceased's intravenous drip fluid and then attached it to Mrs Anderson's IV cannula which, in turn was inserted into her right arm," (crown prosecutor) https://www.smh.com.au/national/nsw/sydney-nurse-mavis-lopez-on-trial-for-manslaughter-after-injecting-patient-nymphea-anderson- with-oral-medication-20150221-13kzqs.htmldf http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWNMT/2008/24.html https://www.caselaw.nsw.gov.au/decision/54a63cda3004de94513dba67 Negligence/ Manslaughter Unreported Charged with manslaughter Month long trial February 2015 Jury 27 hours deliberations unable to reach a verdict (beyond reasonable doubt) Nurse’s barrister applied for permanent stay of the prosecution June 2015 - Prosecutors dropped the charge of manslaughter No further criminal prosecution No longer a RN Cases Abortion Rape FGM Drug Overdose Double effect WARNING: These cases contains details that may be confronting to some students Abortion Case 1 Doctor found guilt of performing illegal abortion Woman given abortion drug, sent home Delivered fetus at 23 weeks gestation in home toilet Baby pronounced dead in hospital 4 hours later Illegal because doctor failed to adequately counsel the pregnant woman Doctor also charged over baby’s manslaughter Dangerous and illegal act by administering abortion drug Gross criminal negligence due to breach of care to the baby https://www.smh.com.au/national/doctor-guilty- of-illegal-abortion-20060824-gdo8l6.html Abortion Case 2 Doctor refused to abort healthy girl because patient wanted a boy Doctor practising Catholic and consciously objected Obliged to refer the patient to a doctor who would terminate the pregnancy under Abortion Law Reform Act 2008 (Vic). Doctor’s argument was that he did not know of any other doctor who would terminate a healthy baby for sex selection Patient independently procured abortion days later https://www.heraldsun.com.au/news/opinion/doctor-risks-his-career- after-refusing-abortion-referral/news- story/a37067e66ed4f8d9a07ec9cb6fd28cf5 Rape Case 1 Rape is illegal in many countries American nurse Charged with sexually assaulting an incapacitated woman What is an incapacitated person? Woman gave birth. Police investigation DNA Samples taken of male employees at facility Person charged https://www.nbcnews.com/news/us-news/ex-nurse-accused-raping-incapacitated- patient-appeals-hiv-testing-order-n1008326 Rape Case 2 Female nurse charged with Rape of elderly male patient with dementia Woman found in the man’s bedroom getting dressed after missing for 90 minutes when she should have been caring for other patients Denied she had been in the patient’s room Sexual assault kit completed on the patient Nurse charged with rape https://www.thesun.co.uk/news/8837998/female-nurse-raped-elderly-patient-with- dementia-and-was-caught-naked-florida/ Rape Case 3&4 Brisbane nurse charged with raping a patient in Brisbane 2 counts rape, 3 counts sexual assault Employed as a nurse Suspended from employment while investigation https://www.abc.net.au/news/2013-08-05/brisbane-nurse-accused-of-raping-hospital- patient/4866194 Psychiatric nurse charged with raping two patients Victorian hospital Trial in county court https://www.theage.com.au/national/victoria/psychiatric-nurse-charged-with- raping-two-patients-at-bundoora-hospital-20161205-gt4a2r.html Rape Case 5 R v MOBILIO 1 VR 339 Convicted on three counts of rape. Radiographer who had undertaken internal examinations of eight women using an ultrasound transducer or probe manipulated by him into the vagina Transvaginal ultrasound not ordered by the doctors, only an external ultrasound examination. Each of the women had given her apparent consent expressly or by her conduct for medical diagnostic purposes Alleged the applicant introduced it solely for the purpose of his own sexual gratification. Not found guilty on five counts. On appeal against conviction – charge overturned The appellant did no act which was essentially different from the act which the women knew he proposed to do, and to which they consented. High court refused DPP special leave to appeal Female Genital Mutilation (FGM) Case 1 The man and woman (can’t be named for legal reasons) Charged in 2015 on two counts each of removing a child from the state for female genital mutilation. The offence carries penalties of up to 14 years imprisonment First criminal case to go before the courts in Queensland. https://www.abc.net.au/news/2018-05-21/first-qld-criminal- prosecution-of-female-genital-mutilation/9777306 Female Genital Mutilation (FGM) Case 2 - R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214 Mother, RN and Islamic Sect leader charged with FGM Accused of cutting genitalia of two sisters (aged 6 and 7) during ceremonies at private homes Found guilty of practice of FGM Appealed New evidence Clitoris intact, Ceremony was symbolic ritual that did involved “skin sniffed the steel”, not FGM Conviction overturned https://www.abc.net.au/news/2018-08-11/genital- mutilation-convictions-overturned/10108106 Drug Overdose You give a patient more than twice the prescribed dose of a drug and the patient dies Are you likely to be charged with a criminal offence? Are you negligent? Can you be both? Drug Overdose Case 1 53 year old Given strong painkiller for pain – fentanyl and oxycodone Not monitored by hospital staff Care not escalated according to protocol No clinical observations documented Combination of opioids and short intervals between doses Coroners Case https://www.abc.net.au/news/2018-10-10/errors-contributed-to- overdose-death-in-adelaide/10359658 Drug Overdose Case 1 Healthy 54 year old Given incorrect medication Died from multiple drug toxicity Prescribing error Failure to detect the error More than 15 missed opportunities to detect the prescribing error Coroners Case – no one charged https://www.abc.net.au/news/2018-10-10/errors-contributed-to- overdose-death-in-adelaide/10359658 Drug Overdose Exception Explains the permissibility of an action that causes serious harm, such as the death of a human being, as a side effect of promoting good It is permissible to cause a harm as a side effect (or “double effect”) of bringing about a good result even though it would not be permissible to cause such a harm as a means to bringing about the same good end. Tx must be appropriate and not excessive Drug Overdose Medical error Need to prove Mens Rea or Actus Reus for it to be criminal case Questions?