Week 8 Lecture Notes: Law and Ethics (Notre Dame University)

Law and ethics  WELCOME E u n i c e Ta n , F re m a n t l e a n d B ro o m e C a m p u s e s Carlo Serrano, Sydney Campus School of Nursing and Midwifery ACKNOWLEDGEMENT OF COUNTRY The University of Notre Dame Australia is proud to acknowledge the trad...

Law and ethics  WELCOME E u n i c e Ta n , F re m a n t l e a n d B ro o m e C a m p u s e s Carlo Serrano, Sydney Campus 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. Copyright statement Objectives By the end of this lecture, you will be familiar with: ❑ Confidentiality ❑ Medical records ❑ Open disclosure ❑ The Coroner Confidentiality Confidentiality Confidentiality ❑ A duty (obligation) that arises when certain information is communicated by a person ❑ with the understanding that this information is to not be communicated to others without consent Confidentiality Privacy ❑ A duty to protect the personal information of other from being accessed by others Confidentiality The purpose of confidentiality legislation is to promote fair and responsible handling of health information by: a) protecting the privacy of an individual’s health information that is held in the public and private sectors, and b) enabling individuals to gain access to their health information, and c) providing an accessible framework for the resolution of complaints regarding the handling of health information. d) enhance public reporting and provide accountability in the health system. Confidentiality Some benefits of legislation are: a) to balance the public interest in protecting the privacy of health information with the public interest in the legitimate use of that information, and b) to enhance the ability of individuals to be informed about their health care, and c) to promote the provision of quality health services. Confidentiality d) minimise misuse and inappropriate disclosure of information , and e) to provide the employees with the ability and knowledge to safely secure and protect sensitive, confidential and appropriately classified information, and f) to promote the appropriate fit-for-purpose information management governance models and mechanisms. Confidentiality Code of Conduct, Principle 3.5 ❑ Nurses have ethical and legal obligations to protect the privacy of people. ❑ People have a right to expect that nurses will hold information about them in confidence, unless the release of information is needed by law, legally justifiable under public interest considerations or is required to facilitate emergency care. Confidentiality Code of Ethics, Confidentiality ❑ Use recording and information management systems that ensure confidentiality. ❑ Provide teaching/ learning opportunities related to informed consent, privacy and confidentiality, beneficence and maleficence. ❑ Incorporate issues of confidentiality and privacy into a national code of ethics for nurses. Confidentiality Codes of conduct ❑ Employe codes of conduct also carry impose responsibilities of confidentiality on nurses (and all employees) Confidentiality Complaints ❑ Complaints can be made … on the grounds that a health service provider … contravened a Privacy Principle or Code. ❑ The recommended first step is to request an internal review … by that health service. ❑ If a person is unhappy with the outcome of the internal review, an appeal can be lodged with the Tribunal. Confidentiality Consequences of breaches ❑ Reporting the individuals responsible for the breach to the employer ❑ Reporting to the external nursing authorities ❑ Reporting allegations of criminal conduct to the police Confidentiality Disclosure ❑ Where you do not have the patient’s consent to disclose confidential information you should proceed with caution. ❑ Under legislation patients have a right to access their medical notes and health information. Confidentiality Disclosure, questions to ask ❑ Do you have the patient’s consent and if so, to whom are you authorised to give the information to? ❑ If you do not have the patient’s consent under what circumstances can you release information to third parties? Confidentiality What information can be provided to the police? ❑ Where you do not have the patient’s consent you can provide only limited information to the Police. ❑ In these circumstances information should be limited to: ❑ Confirmation of identity and address. ❑ The injuries sustained by the patient. ❑ The patient’s current condition. ❑ Any additional information can only be released with a signed consent from the patient, a subpoena or search warrant. Confidentiality What information can be provided to the Coroner? 1. A person who reports a death must give to the coroner investigating the death any information which may help the investigation. 2. A member of the police force who has information relevant to an investigation must report it to the Coroner investigating the death. Confidentiality Making a valid disclosure ❑ There are three ways you may be authorised to disclose a patient’s confidential information ❑ With consent: ❑ By operation of the law: ❑ In the public interest (For example if the patient is at risk of harm to self or others) Confidentiality Breaching confidentiality ❑ one of the most common mistakes nurses make is believing their decision not to name a patient means they are not breaching patient privacy or confidentiality. ❑ Example: talking about a patient on a bus and a person recognises who you are talking about. Confidentiality In conclusion ❑ Your duty to maintain patient confidentiality is paramount ❑ Failure to maintain a patient’s confidentiality can result in a civil claim or notification/complaint Medical records Medical records Communication ❑ The 2 aspects of good communication are: ❑ The manner of communication. ❑ The quality of the information communicated Medical records Medical records ❑ A medical record is considered a contemporaneous record of events, and can be admitted as evidence in: ❑ Civil proceedings. ❑ Criminal proceedings. ❑ Coronial inquiries Medical records Medical records ❑ Medical records are required to be sufficiently detailed and comprehensive to provide effective communication to the health care team to ensure that a person’s care is effective and continuing, allow for evaluation of their progress over time and retain its integrity over time. Medical records Medical records ❑ An accurate and timely record of each episode of a patient’s care must be made in the records so that the record is available at any subsequent point of care or service delivery ❑ The documents must be clear, accurate and unambiguous ❑ The records should contain statements of fact and clinical opinions only ❑ Documents should be complete and comprehensive Medical records Medical records ❑ A thorough, complete and contemporaneous record can mean the difference between being found negligent or not: ❑ “the records are likely to be a far more reliable source of truth than memory. They are often the only source of truth” Albrighton v RPA Hospital (1980) 2 NSWLR 542, per Hope J. Medical records Writing notes (paper or electronic) ❑ A note should include the date, time, name of the writer, the writer’s designation and be signed ❑ Use military time to remove ambiguity ❑ A nurse should only write notes on what they have witnessed or assessed ❑ The patient details must be on each page of a paper record ❑ Standard abbreviations only should be used ❑ For paper notes, use blue or black ink. However, some institutions request only black ink be used, because historically, photocopiers could only read black ink properly Medical records Writing notes ❑ Be specific, consider the following: Patient is drunk versus Patient is unable to walk in a straight line, or is slurring their speech Medical records Medication charts (paper or electronic) ❑ Medications should be charted by their generic name where possible (electronic systems should do this automatically), for example: ❑ Trade name : Daonil ❑ Generic name: Glibenclamide ❑ Trade name: Amoxil ❑ Generic name: Amoxicillin Medical records Creating records ❑ In circumstances where providing care to the patient results in an inability to make a contemporaneous note then a retrospective note should be made as soon as is practicably possible ❑ The note should be identified as being made retrospectively and the date and time of the retrospective note must be recorded with the other required details Medical records Amending records ❑ Do not alter records in a way that will: ❑ Obliterate ❑ Obscure or ❑ Make illegible any information in them. Medical records Records storage ❑ You must store any records to ensure that: ❑ (i) Your patient’s privacy is maintained. ❑ (ii) The records are not lost, stolen or damaged. Medical records Patient access to records ❑ There is no fee to get one’s medical record held by State public health services, but private and GP will charge a fee to cover the administrative costs of providing the medical records. ❑ The patient must put their request in writing and pay the appropriate charge Medical records Patient access to records ❑ A patient should never be left unattended with their original medical records ❑ A patient can authorise another person to see their medical record Medical records Patient access to records ❑ There are some instances when a patient cannot have access to their medical record ❑ If reading their record would adversely affect their physical or mental health. ❑ If reading the record might lead to someone else coming to harm ❑ Another law requires the information to be kept private. E.g., in preparation for legal proceedings Open disclosure Open disclosure What happens when things go wrong? ❑ We know the patient is an informed decision-maker ❑ The patient must also be fully informed when a critical incident occurs during their care Open disclosure Open disclosure and patient’s healthcare rights includes the right to: ❑ Be told what went wrong with the patient’s health care, how it happened, how it may affect the patient and what is being done to make the patient’s care safe ❑ Share their experience and participate to improve the quality of care and health services ❑ Ask questions and be involved in open and honest communication ❑ Provide feedback or make a complaint without it affecting the way you are treated Open disclosure The objectives of the State Health Open Disclosure Policy ❑ Establish a culture which supports open communications between patients, their support person(s) and clinicians after a patient safety incident ❑ Ensure that communications with and support for all affected patients, their support person(s) and Health Service staff occur in a timely and empathic manner ❑ Ensure that all State Health Services have a consistent process for open disclosure Open disclosure Open disclosure is ❑ A patient’s and consumer’s right ❑ A core professional requirement of ethical practice and an institutional obligation ❑ A normal part of an episode of care should the unexpected occur, and a critical element of clinical communications. ❑ An attribute of high-quality health services and an important part of health care quality improvement Open disclosure Who is required to openly disclose? ❑ Open disclosure is a duty of all healthcare providers in State Health ❑ However, facility and State Health policy and procedure must be followed to ensure open disclosure takes place in the correct fashion ❑ Students should report all incidents where they believe open disclosure is required to a staff member in their facility Open disclosure Open disclosure and the fully informed patient ❑ A fully informed patient includes a patient who has received open disclosure where required The Coroner The Coroner The Coroner ❑ The Coroner is State based. Coroners in WA / NSW / SA / Victoria must be Magistrates with legal training, and is attached to a Local Court. The Coroner The role of the Corner’s Court ❑ To investigate reportable deaths or suspected deaths to determine: the identity; place; date; cause; and manner of death. ❑ To investigate fires and explosions to determine their cause and origin. ❑ To make recommendations concerning public health and safety, and the investigation or review of matters. ❑ To ensure that an inquest or inquiry is held whenever it is required ❑ To issue guidelines to coroners to assist them in the exercise or performance of their functions The Coroner Making a report ❑ Reportable deaths are to be reported to the police who will act on behalf of the coroner ❑ It is up to the medical practitioners to complete the relevant ‘reportable deaths’ paperwork. The Coroner In what circumstances should death be reported? ❑ Death was violent or unnatural ❑ Death was sudden and cause of death is unknown ❑ There are suspicious or unusual circumstances around the death ❑ Death was not a reasonably expected outcome of a health-related procedure (defined as a medical, surgical or other health-related procedure including administration of anesthetic, sedative or other drug). The Coroner In what circumstances does death not need to be reported? ❑ Any death that falls outside the scope of the Coroners Act. ❑ When the death occurs in a hospital but is expected and a death certificate can or has been issued, e.g., palliative care or end of life care. “Cause of death” certificates are only to be issued if the death is not reported The Coroner The role of the registered nurse when a reportable death has occurred in a healthcare facility ❑ Ensuring an appropriate person reports the matter to the coroner, i.e., the medical officer responsible for the care of the patient. ❑ Preparing the body for the morgue with the correct identification tags. ❑ Ensuring that everything is left insitu inc. cannulas, lines, drains, catheter bags, etc. ❑ Providing thorough contemporaneous notes, The Coroner The role of the registered nurse when a reportable death has occurred in a healthcare facility ❑ Provide a statement for the Coroner if required. ❑ Provide evidence in the Coroner’s Court during an inquest if subpoenaed to do so. ❑ Patient notes may be viewed by a nurse prior to making a statement or giving evidence at an inquest. The Coroner Appealing a coronial finding ❑ Generally, there are no appeals from the decision of a Coroner ❑ However, the Supreme Court in the State can order a fresh inquest Questions Please bring any questions you have about this lecture to your weekly tutorial References Albrighton v RPA Hospital (1980) 2 NSWLR 542. Australian Law Reform Commission. (2014). Obligations of confidence. http://www.alrc.gov.au/publications/15.%20Federal%20Information%20Laws/obligations- confidence Government of Western Australia Health and Disability Services Complaints Office (2018-2023) Nursing Careers Allied Health. (2013). Social media and patient privacy - a nurse leader's investigation. http://www.ncah.com.au Health Consumers’ Council. (n.d). https://www.hconc.org.au/individual-advocacy/how-to-make-a- complaint/ Prendergast v Sam and Dee Ltd, Kazary and Miller (1996) Unreported 1240119013 December 1996 Privacy Act 1988 (Cth.). Staunton, P.J., & Chiarella, M. (2020). Law for nurses and midwives (9th ed.). Elsevier.