Law and Ethics Lecture Notes (Notre Dame University)

La w a nd e t hi c s  WELCOME E u n i c e Ta n , F r e m a n t l e a n d B r o o m e C a m p u s e s Carlo Serrano, Sydney Campus School of Nursing and Midwifery A C K N O W L E DG E M E NT O F C O U N T R Y The University of Notre Dame Australia is p...

La w a nd e t hi c s  WELCOME E u n i c e Ta n , F r e m a n t l e a n d B r o o m e C a m p u s e s Carlo Serrano, Sydney Campus School of Nursing and Midwifery A C K N O W L E DG E M E NT O F C O U N T R Y 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. Copyright statement Objectives By the end of this lecture, you will be familiar with: ❑ Criminal law as it relates to nursing ❑ The impact of personal attitudes on nursing practice and discuss how negative impacts can be negated ❑ Issues of stigma and bullying ❑ Anti-discrimination principles and legislation Criminal law Criminal law Nurses and criminal law ❑ Crimes generally are actions that are considered harmful to individuals or society ❑ Nurses should not be committing crimes against patients ❑ However, it is necessary for nurses to be able to recognise a potential crime Mens rea and actus reas A crime requires two elements ❑ Mens rea: the guilty mind or intention. Example: the intention to harm a person ❑ Actus reas: the action. Example: Harming a person ❑ Examples of crimes include murder, theft, criminal assault, criminal negligence, etc. Trespass to the person You recall that civil trespass is: ❑ Assault: a perceived threat ❑ Battery: a touch that is considered offensive ❑ False imprisonment: a restriction on liberty, often done under a mistaken belief that one is detained, or that detaining a person is necessary Trespass to the person Criminal trespass: ❑ For trespass to amount to a crime there has to be an intention to commit a crime and the action of committing the crime Trespass to the person For example: Criminal assault ❑ For criminal assault, the principles of assault and battery are fused ❑ A threat of harm is made – the verbalisation of the intention (the assault) ❑ The threat is then carried out – the action (the battery) ❑ False imprisonment can also amount to a crime: an unlawful detention of a person (the action) with the intention to unlawfully detain that person Negligence Civil negligence ❑ Civil negligence is carelessness (a failure to act or prevent harm), but what makes negligence criminal is that the failure is to such a degree that it warrants punishment. ❑ Criminal negligence, as with civil negligence, requires a duty of care ❑ a person has a legal obligation (duty) to ensure reasonable care is taken to not harm the victim Negligence Criminal negligence A defendant must have ❑ Committed an unlawful or negligent act, or made an admission, and ❑ That conduct caused grievous bodily harm. ❑ a negligent act must be reckless, exhibiting such a high degree of disregard for the life and safety of others as to be regarded as a crime against the community generally' to be criminal. ❑ The negligent act or omission “must be so gravely in error and carry with it such a high risk of serious injury that it deserves to be punished as a serious criminal offence”. Discrimination Discrimination Discrimination ❑ Discrimination is the arbitrary, less favourable treatment of a person based on gender, skin colour, religion, race, etc. Discrimination Discrimination ❑ Anti-Discrimination acts make certain types of discrimination unlawful in certain situations; ❑ it sets out exceptions where discrimination is allowed; and ❑ in situations not covered by an exception, it provides a method for gaining an individual exemption from the Act Discrimination Discrimination ❑ Some examples of discrimination (list is non-exhaustive): ❑ Disability discrimination ❑ Race discrimination ❑ Sex discrimination ❑ Homosexual discrimination ❑ Transgender discrimination ❑ Age discrimination ❑ Harassment (an example is bullying) ❑ Sexual harassment Discrimination Discrimination ❑ There are also some largely commonsense exceptions listed in the ADA where it is OK to target jobs or services towards a particular group. For example, the Act specifically states that it is OK to advertise a job for one sex only, if being that sex is clearly an essential requirement of the job – such as recruiting a woman to clean female toilets or a man to clean male toilets. Discrimination Discrimination ❑ Where an exception is not met, then an exemption is required if you want to favour a particular group of people in situations where that would otherwise be unlawful under the ADA ❑ For example: In situations where being of a particular race isn’t essential to do the job, you will need to show targeting the job for a particular group will help redress past or present discrimination Disability discrimination Disability discrimination ❑ It is generally against the law in to treat you unfairly or harass you because you have a (current, previous, or potential) disability. Race discrimination Race ❑ Indirect race discrimination is also against the law. This occurs when there is a rule or requirement that disadvantages people of a particular race more than people of other races - unless it can be shown that the rule or requirement is 'reasonable in all the circumstances'. ❑ Example: it would be against the law to stop you speaking in your own language at work or when you are studying at college, university and so on - unless speaking in your language stops the work or study being done properly (example, when working on a ward as a nurse) Sex discrimination Sex discrimination ❑ It is mostly women who experience sex discrimination, however sex discrimination against men does happen sometimes and it is also against the law ❑ Differing dress standards for men and women may be sex discrimination ❑ Dress rules to not have to be exactly the same in terms of individual garments, as dress norms are different for men and women. Homosexual discrimination Homosexual discrimination ❑ Is when you have been treated unfairly because: ❑ you are gay or lesbian or someone thinks you are gay or lesbian ❑ you are the relative, friend or colleague of someone who is gay or lesbian. Transgender discrimination Transgender discrimination ❑ Is when you have been: ❑ treated unfairly because you are transgender, or people think you are transgender ❑ treated as your former sex when you are a recognised transgender person ❑ forced to follow a rule or requirement as your former sex ❑ treated unfairly because you are the relative, friend or colleague of a person who is transgender or a person who is assumed to be transgender Age discrimination Age discrimination ❑ Discrimination in any form based on age ❑ It is generally against the law to force people to retire if they don't want to. This means that most employees can continue working beyond any compulsory retirement age that applied in the past. Harassment Harassment (e.g., bullying) ❑ Anti-discrimination law defines harassment as any form of behaviour that: ❑ you do not want ❑ offends, humiliates or intimidates you ❑ creates a hostile environment. Harassment Bullying ❑ “workplace bullying means behaviour which is offensive, intimidating, intended to humiliate or threatening and is directed at a staff member or a group of staff members, and occurring in the course of or related to work.” Harassment Workplace bullying will generally meet the following criteria: ❑ It is repeated and systematic (although a serious single incident can also constitute bullying) ❑ It is unwelcome and unsolicited ❑ The recipient/s consider/s the behaviour to be offensive, intimidating, intended to humiliate or threatening ❑ A reasonable person would consider the behaviour to be offensive, intimidating, intended to humiliate or threatening. Harassment What is not workplace bullying: ❑ Legitimate and reasonable managerial actions to direct and control how work is done in the workplace do not constitute workplace bullying. Harassment Anonymous complaints of bullying ❑ Anonymous complaints are not encouraged. However, where they are received they need to be assessed. While individual matters may not be able to be followed up, a general organisational response may be required Harassment Assessing a Bullying Complaint ❑ All bullying complaints must be treated seriously and confidentially and acted on promptly ❑ Prompt action should reinforce the message that workplace bullying is unacceptable, and is also consistent with the manager’s duty of care under OH&S legislation. Harassment Investigating bullying ❑ Any investigation process must be fair, impartial, and professionally conducted. Sexual harassment Sexual harassment ❑ unwanted sexual advances, or unwelcome requests for sexual favours; or other unwelcome conduct of a sexual nature; and ❑ in the circumstances, a reasonable person would have expected you to be offended, humiliated or intimidated by this behaviour Discrimination and transmissible infections Discrimination and transmissible infections Nursing with a transmissible infection ❑ It is possible to work in health care even if one has a transmissible infection ❑ This is dependent on the type of infection and ease of which the infection may be transmitted to others ❑ A transmissible infection is not necessarily something that must be disclosed ❑ A need to disclose is based on the risk of infection to the patient Discrimination and transmissible infections A nurse with a blood-borne transmissible infection may have to disclose their infection if that are performinng exposure prone procedures for body fluids, including: ❑ those performed in a confined body cavity ❑ where there is poor visibility and a risk of cutting yourself with a sharp tool, or on a tooth or sharp piece of bone ❑ Restrictions most often affect surgeons, operating theatre nurses and dentists ❑ Information for nurses on what procedures they may be involved with or perform or not, is available from professional nursing bodies Discrimination and transmissible infections Patient with a transmissible infection ❑ Disclosure by a practitioner ❑ A health care practitioner has a duty to maintain patient confidentiality ❑ Health care providers do not owe ‘a duty to the world at large ❑ Doctors, except in limited statutory exceptions, do not have a duty to come to the rescue of strangers Discrimination and transmissible infections Patient with a transmissible infection ❑ however, health care providers may owe a duty of care to persons other than their patient where it is reasonably foreseeable that their actions might harm those persons. ❑ In such cases, health care providers could be held liable for injuries or harm suffered by third parties as a result of their acts and omissions Discrimination and transmissible infections Patient with a transmissible infection ❑ It is lawful for a health professional to disclose information if: ❑ some other law requires disclosure ❑ it can be argued that the person has provided express or implied consent for the disclosure ❑ it may be in the public interest for the information to be disclosed – this is difficult to categorise Discrimination and transmissible infections Patient with a transmissible infection ❑ Restriction of liberty: ❑ Any restrictions placed on the liberty or decision making capacity of the individual must be limited to the protection of the public ❑ Where immediate protection is not warranted then liberty cannot be restricted Questions Please bring any questions you have about this lecture to your weekly tutorial References Nsw Government. (2015). Anti-discrimination board of NSW. http://www.antidiscrimination.justice.nsw.gov.au NSW Health (2011). Bullying - prevention and management of workplace bullying in NSW health. http://www0.health.nsw.gov.au/policies/ pd/2011/pdf/PD2011_018.pdf Staunton, P.J., & Chiarella, M. (2020). Law for nurses and midwives (9th ed.). Elsevir. United States Holocaust Memorial Museum. (2014). Law, justice and the holocaust. Retrieved from http://www.ushmm.org/wlc/en/article. php?ModuleId=10007887