Law and Ethics Lecture Notes PDF

Law and ethics WELCOME Darren Conlon, Sydney Campus E u n i c e Ta n , F re m a nt l e a n d B ro o m e C a m p u s e s School of Nursing and Midwifery ACKNOWLEDGEMENT OF COUNTRY The University of Notre Dame Australia is proud to acknowledge the traditional owners and custodians of this land upon wh...

Law and ethics WELCOME Darren Conlon, Sydney Campus E u n i c e Ta n , F re m a nt l e a n d B ro o m e C a m p u s e s School of Nursing and Midwifery ACKNOWLEDGEMENT OF COUNTRY The University of Notre Dame Australia is proud to acknowledge the traditional owners and custodians of this land upon which our University sits. The University acknowledges that the Fremantle Campus is located on Wadjuk Country, the Broome Campus on Yawuru Country and the Sydney Campus on Cadigal Country. Objectives By the end of this lecture, you will be familiar with: ❑ Informed consent ❑ Consent in minors ❑ Consent and Mental Health ❑ Community Treatment Orders ❑ Trespass to the Person Consent Consent Consent ❑ Informed consent is the obtaining of permission from a patient before a healthcare procedure ❑ The person performing the procedure is usually the one who obtains consent ❑ Consent must be informed to be valid. Sometimes referred to as ‘fully informed consent’ ❑ An informed consent is based on a clear appreciation and understanding of the facts, implications and consequences of an action Consent Consent ❑ Any procedures that involves intentional physical contact with a patient’s body is an invasion of the patient’s bodily integrity and requires valid consent ❑ You need consent to show that the patient has given permission for the contact ❑ The person, including a nurse, about to make contact should be the one to obtain consent Consent Trespass to the Person ❑ The absence of consent equals a Trespass to the Person and may result in legal action for assault, battery or even false imprisonment Consent There are 3 necessary principles/elements/criteria for a valid informed consent. ❑ Consent must be given freely and voluntarily ❑ Consent must be informed and for a specific procedure/treatment ❑ The person giving consent must have legal capacity Consent Legal capacity The patient must be able to: ❑ Take in and retain treatment information; ❑ Understand the information; and ❑ Assess or weigh the information, balancing the risks against the benefits, and their needs. ❑ Communicate their decision. If no capacity to consent – go to relevant legislation Consent Material risks ❑ Practitioners and that includes nurses also have a legal duty to warn patients of material risks associated with a proposed treatment Consent Material risks ❑ Material risks are those risks which the patient would attach significance to or if the doctor believes that a reasonable person in that position is likely to attach significance to the risks ❑ Otherwise it is negligence ❑ A failure of a duty of care to warn or inform Consent A competent person ❑ Has right to refuse treatment on any grounds ❑ Can withdraw consent at anytime However ❑ Must inform the person performing the procedure if consent is withdrawn Consent Refusing consent ❑ You are obliged to respect the wishes of a competent person who has the capacity to consent, even if this means that death or serious damage will occur Consent Biomedical principles and consent ❑ Autonomy: ❑ Free to make own decisions on consenting to a procedure without interference or control from others ❑ Who is benefitting from the exercise of autonomy? It could be someone other than the person exercising autonomy ❑ Not unlimited because it can impact on the rights of others ❑ Autonomy may conflict with individual or professional conscience Consent Biomedical principles and consent ❑ Non-Maleficence: do no harm. In consent, forcing a procedure on a patient against their wishes would be harmful ❑ Beneficence: do good. Act to remove harm, or to benefit, the patient, but if patient with capacity refuses, respect the patient’s wishes ❑ Justice: concept of justice is often reduced to that of fairness or distributive justice which focuses on the distribution of good and services. In nursing this entails distribution in response to level of need Consent Consent may be given in either of 3 ways 1. Implied 2. Oral 3. Written Consent Implied and oral consent ❑ For a minor procedures with a low risk ❑ Formal written consent is not necessary ❑ Consent is usually given orally or implied by patient’s actions/behaviour ❑ An example of implied would be obtaining a blood pressure, the patient does not offer a response to the request but puts their arm out for the BP cuff Consent Written consent ❑ Written consent is necessary for: ❑ Non routine or surgical procedures of an invasive nature ❑ An invasive procedure which is any procedure that involves a puncture of the skin (definition given by the Courts) Consent Written consent ❑ Some minor invasive procedures do not require a written consent. However, full informed consent must still be obtained ❑ This involves informing the patient of the risks of a procedure prior to their consent ❑ An example would be insertion of a peripheral venous catheter Consent A consent is not necessary ❑ When time is critical ❑ When you have a court order ❑ When the treatment is authorised by statute ❑ In a Child emergency situation Consent For medico-surgical procedures ❑ The treating doctor: ❑ Medical and surgical procedures are not to be performed without a consent form which has been signed by both the treating practitioner and the patient prior to the surgery or intervention ❑ Exception: ❑ Public patients in public hospitals. It is reasonable for the RMO/Registrar to obtain consent here Consent Consent form ❑ It is a written record of informing a patient about the material risks of a procedure ❑ It documents a patient’s informed consent and both the patient and doctor date and sign ❑ It must be completed by the treating doctor or for a public patient in a public hospital, the doctor who obtained informed consent ❑ It can be completed on admission ❑ It cannot be delegated to nursing and administration Consent Consent form ❑ Nursing staff can witness a patient’s signature if required, on a consent form filled in and signed by the doctor Consent A new consent is not necessary ❑ When there is an unplanned return to operating theatre that is time critical Consent for certain persons Linguistically diverse Linguistically diverse/Non English Speaking Background (NESB) ❑ Need a qualified interpreter ❑ From a recognised organisation ❑ Do not use friends or relatives as an interpreter outside of routine activities like those of daily living. E.g. Would patient like their hair shampooed today? ❑ It is preferable to have the interpreter attend in person if possible Minors Gillick competence/Mature minor test ❑ Minors may authorise medical treatment when they are old enough and mature enough to decide for themselves, provided they are capable of understanding what is proposed and of expressing their own wishes ❑ 14 years or over – where the individual consents to medical treatment this will defeat any subsequent claim of battery by the individual ❑ However, A child under 16 cannot refuse medical treatment Minors Confidentiality ❑ If the child meets the Gillick definition of a ‘mature minor’ it is not necessary for a doctor to contact the child’s parent. The child is entitled to the same confidentiality of medical information as an adult patient Minors In the case where a child consents to treatment but the parents become aware of the issue and refuse to provide consent ❑ The child’s consent will usually be sufficient legal authority for the doctor to undertake the procedure if the child is Gillick competent. ❑ If the situation is complicated or unable to be resolved then the jurisdiction for decision making lies with the Family Court of Australia and/or the Supreme Court Minors When is consent not required? ❑ Where treatment is necessary, as a matter of urgency, to save the child’s life or prevent serious damage to the child’s health ❑ Where there is a Court order authorising treatment Intellectual disability Intellectual disability ❑ Intellectually Disabled Persons or people lacking capacity over 16 years of age require one of the following to consent to treatment ❑ A legally appointed guardian ❑ Enduring guardian appointed by the person whilst of sound mind ❑ A “person responsible” Mental health Mental Health Acts ❑ Define people who are subject to care, treatment and protection under the Act, for the protection of themselves or others from harm ❑ Set out the process for admission, detention and treatment to promote recovery within mental health facilities ❑ Recognise the fundamental rights of persons ❑ Set up appeal mechanisms Mental health Mentally disordered person ❑ A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person’s behaviour for the time being is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: ❑ (a) for the person’s own protection from serious physical harm, or ❑ (b) for the protection of others from serious physical harm Mental health Mentally ill person ❑ A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: ❑ (a) for the person’s own protection from serious harm, or ❑ (b) for the protection of others from serious harm ❑ In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of any such deterioration, are to be taken into account Mental health Admission ❑ A person can be admitted to a Mental Health Facility (MHF) as either a: ❑ Voluntary patient – they agree to be admitted for assessment and any necessary treatment ❑ Involuntary patient – they do not agree to be admitted for assessment or treatment and are admitted under the relevant section of the Act Mental health Mental disorder and multiple admissions ❑ A person cannot be admitted as an involuntary patient due to a mental disorder on more than 3 occasions in any calendar month. ❑ Because multiple admissions indicates it may not be a temporary condition Mental health Limited detention of mentally disordered persons ❑ You cannot detain a mentally disordered person for more than 3 days / 72hrs as a continuous period when they first arrived ❑ This does not include weekends or public holidays ❑ A mentally disordered person must be reviewed by a Doctor within 24 hours Mental health Voluntary patient ❑ Consent for a person who is a voluntary mental health patient is per the terms of any legislation under which they are currently subject, if at all ❑ It can be the same criteria as for a person who is not in in a Mental Health Facility Mental health Involuntary patient ❑ While a person is detained as a, “mentally ill person‟ or a, “mentally disordered person‟, they cannot be given treatment without their consent even if they are a referral person, unless they are subject to an involuntary treatment order or in an emergency. ❑ However, some treatments such as electro convulsive therapy requires the consent of a Mental Health TrIbunal. Mental health Voluntary patient discharge ❑ Essentially voluntary patients can discharge themselves, or be discharged if the view is held that their admission is no longer of any benefit to them Mental health Tribunals Mental Health Tribunals ❑ State Mental Health Tribunals are specialist quasijudicial bodies constituted under state mental health acts. They have a wide range of powers that enable them to conduct mental health inquiries, make and review orders, and to hear some appeals about the treatment and care of people with a mental illness Mental health Community Treatment Order ❑ A CTO is a legal order made by either a Mental Health Tribunal or a Magistrate ❑ A person may be ordered to accept treatment, care and management to be provided in the community by a nominated mental health facility ❑ People, who might otherwise be detained in a mental health facility, can live in the community and get the treatment, care and support they need in a less restrictive setting Trespass to the person Trespass to the person Trespass to the person entails the torts of: ❑ Assault ❑ Battery ❑ False Imprisonment Trespass can also amount to a crime, and we will discuss in our criminal lecture Trespass to the person Assault ❑ An assault is any direct and intentional threat made by a person that places another in reasonable apprehension (belief) of imminent contact, either by the person making the threat or by some person or thing within the control of the person making the threat. ❑ Whether or not a person intended to make a threat is irrelevant, it is whether the other person reasonably perceived it as a threat. ❑ So you tell someone that you are will hurt them and they truly believe that you will ❑ However, a simple perceived threat is not enough and must be accompanied by other concerns such as a person's actions or behaviours Trespass to the person Battery ❑ A battery is a voluntary act, done with the intention of causing contact with another, that directly causes that contact. ❑ The intention of the person touching is irrelevant, it is whether the person being touched reasonably finds the contact offensive. ❑ So, you intend to touch some one and you do touch that person Trespass to the person False imprisonment ❑ An intentional, total and direct restraint on a person’s liberty, without consent or authority. Can be physical or verbal. ❑ The person must be restrained by words, actions, or physically, must be aware of the confinement, and must reasonably believe they cannot leave. ❑ The intention of the person restraining is irrelevant. For example, it can be based on a mistaken belief on the part of the nurse – that the patient must be held. Trespass to the person Defences to trespass ❑ Consent, the person agrees to the trespass ❑ Necessity, the trespass is necessary. Eg, in a medical emergency ❑ Self-defence, the trespass was committed during an act of self defence ❑ Self defence must be proportionate to the act being defended against ❑ However, damages awarded for a disproportionate act of self defence will be limited ❑ Self defence against an unlawful act will not incur damages at all Questions Please bring any questions you have about this lecture to your weekly tutorial References Appleton v Garrett (1995) 34 BMLR 23, 4 MedLRev311. Barker, K., Cane, P., Lunney, M., & Trindade, F. (2011). The Law of torts In Australia, (5th ed). Oxford University Press, Australia and New Zealand. Briginshaw v Briginshaw HCA 34. BT v Oei NSWSC 1080. Civil Liability Act 2002 (NSW). Civil Liability Act 2002 (WA). Donoghue v Stevenson HOL 100. Gillick v West Norfolk and Wisbech Area Health Authority AC 112. Mental Health Act 2007 (NSW). Mental Health Act 2014 (WA). Re: Y 2 FLR 787. Sherry v Australasian Conference Association (t/as Sydney Adventist Hospital) NSWSC 75. Staunton, P.J., & Chiarella, M. (2020). Law for nurses and midwives (9th ed.). Elsevier. Waller v James NSWCA 497. Watson v Marshall and Cade (1971) 124 CLR 621.