Law and Ethics NURS2035 24S1 PDF

2/9/24 Law and ethics NURS2035 1 WELCOME Darren Conlon, Sydney Campus E u n i c e Ta n , F r e ma n t l e a n d B r o o me C a mp u s e s School of Nursi ng and Mi dwi fery 2 ACKNOWLEDGEMENT OF COUNTRY The University of Notre Dame Australia is proud to acknowledge the traditional owners and custodia...

2/9/24 Law and ethics NURS2035 1 WELCOME Darren Conlon, Sydney Campus E u n i c e Ta n , F r e ma n t l e a n d B r o o me C a mp u s e s School of Nursi ng and Mi dwi fery 2 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. 3 1 2/9/24 Objectives By the end of this lecture, you will be familiar with: Law and ethics in Australia Law and the nursing profession Ethics and the nursing profession 4 Copyright statement 5 History of nursing in Australia 6 2 2/9/24 The Australian legal system “The law is reason free from passion” Aristotle 7 The Australian legal system “Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal.” Aristotle 8 The Australian legal system The Australian legal system had its origins in England q Democratic qualities include: q Equality before the law q Freedom q Respect for the ‘Rule of Law’ 9 3 2/9/24 The Australian legal system The ‘Rule of Law’ is the cornerstone of our legal system q No person or institution can be above the law q All persons are subject to the same force of the same laws for the same set of circumstances q The law and not any individual person is supreme 10 The Australian legal system Australia is a: q Federation – each state has its own government q Constitutional monarchy – the powers of the Crown are delegated to the Governor General by the Australian Constitution q Parliamentary democracy – ‘responsible government’ by and overseen by democratically elected members 11 Features of the Australian legal system The following features are fundamental to the Australian legal system q Presumption of Innocence q Procedural Fairness/transparency q Natural Justice: Right to be heard & rule against bias q Right of Appeal 12 4 2/9/24 Features of the Australian legal system Separation of the Powers There are three pillars of power that hold up the law, to ensure no single institution has control of the law q The Legislature – a body that can make, change or repeal laws - The Parliament q The Executive – administers the functions of the state, country, etc. They control law enforcement bodies - Government Ministers, the Cabinet q The Judiciary – interpret and apply laws – Courts, judges, etc 13 Features of the Australian legal system The Westminster System q Australia has a Westminster system of Government q One characteristic is a partial fusion of powers q The Cabinet (Executive) is drawn from parliament (Legislature) q Generally, bills are debated en-masse and the Executive controls the Legislature 14 Sources of law in Australia Common Law q Sometimes called judge made law, case law, the law that applies to all q It is based on precedent, on the belief that same facts should not be treated differently q It is limited by jurisdiction. For example a contemporary Common Law precedent in NSW would not apply in England 15 5 2/9/24 Sources of law in Australia Legislation q In a pure common law system, there is a presumption that legislation is interpreted against existing common law q However, in a Westminster parliamentary system like Australia the Parliament can make any law and overrule the Common Law q Federal and state legislatures engage in mutual recognition q However, again a NSW law might not apply in another Australian Jurisdiction 16 The law and nursing Modern nursing q Grew at a time when rules, regulations and the law were beginning to have greater influence as society moved towards modernisation q The first professional nursing school opened in the UK in 1860 q Nursing was bound by all of the laws of the land q However, the promulgation of nursing as a profession also led to the need for nursing/health specific regulation and legal oversight 17 Some legal fields that impact on nursing Criminal law q Utilised by a ruling state q Serves to protect the community, and community interests, by upholding a defined standard of behaviour q Aims to protect community against behaviour that is threatening, harmful, dangerous to life or limb, morally corrupt, etc. Murder, assault, child pornography, drink-driving q Burden of proof: beyond reasonable doubt 18 6 2/9/24 Some legal fields that impact on nursing Civil Law q Utilised to right a perceived wrong. Generally not based on a criminal act. It is usually based on the rights and obligations of individuals q Concentrates on dispute resolution and compensation q In limited circumstances it may also entail forcing a person to act or refrain from acting but only if the court decides that damages will not suffice q Burden of proof: on the balance of probabilities 19 Some legal fields that impact on nursing Administrative Law q Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments q It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction 20 Some legal fields that impact on nursing Administrative Law q Administrative authorities work within a defined set of powers, they cannot act outside of the legal rules in which they operate q Example: Tribunals apply the law within their powers, they cannot make new law q Nursing is governed in many aspects by administrative law. For example: The Occupational Division of the NSW Civil and Administrative Tribunal (N-CAT) has a nursing division 21 7 2/9/24 What else might have an impact on nursing practice? Ethics q Duties and obligations arise when we deal with others q These duties also arise when as nurses we interact with stakeholders q Each choice and decision we make involves the assessment and choosing or balancing of ethical outcomes 22 Intersection of law and ethics Ethics q Each choice we make has both a legal and an ethical impact q We need to ensure that we meet our obligations for both q An act may legal but unethical, or (considered to be) ethical but illegal 23 Intersection of law and ethics Ethics q In nursing an act may be legal but also unethical q How would you feel if I told you that your personality was repulsive? q How do you think a patient would feel? 24 8 2/9/24 Intersection of law and ethics Ethics q In nursing an act may be considered ethical by some, but may be illegal in the eyes of the law q For example: relieving suffering is ethical, but extinguishing a life (no matter the health care circumstances) is illegal in many countries around the World 25 Ethics What is ethics? q Moral principles that govern how a person behaves q The branch of knowledge that deals with morality 26 Ethics What is ethics? q Ethics has an impact on every action that require choice including those of nurses q The requirement to set a minimum ethical standard has led to the codification of Nursing ethics in Australia 27 9 2/9/24 Ethics What is ethics? q Broadly concerned with human flourishing q Prescriptive (should/ought - norms) q Systematic: uses reason to define what ought to be done q Universalisable: applies to all equally q Of overriding importance: should override law, politics or self-interest 28 Ethics Ethics is about q The nature of human values q What are the grounds of our beliefs? q How do we justify our moral rules? q Are all values equally defensible? 29 Ethics Ethics is about q How we ought to live o What are we aiming for? o What is the good life? 30 10 2/9/24 Ethics Ethics is about q What does right conduct amount to o How should we behave? o What duties do we have? o Is this action right? 31 Objections to studying ethics 3 common objections to studying ethics: q Irrelevant: Hospitals have ethics committees, isn’t it their job to think deeply about this stuff? Can’t I just do my job – this isn’t crucial for being a good, professional nurse. q All you need is law! We have laws, isn’t that enough to guide decisionmaking? q All you need is the professional codes! We have codes of conduct and codes of ethics, isn’t that enough to guide decision-making? 32 Ethics is irrelevant Ethics is not irrelevant q We cannot avoid confronting moral problems q Acting in ways that affect the well-being of ourselves and others is as unavoidable as acting in ways that affect the physical health of our own bodies 33 11 2/9/24 Ethics is irrelevant Ethics is not irrelevant q We may choose to not pay attention to the concerns of morality, but that does not mean we can avoid making decisions about morality q We can ignore morality, but we cannot sidestep the choices to which morality is relevant, as long as we continue living, we will inevitably be confronted with moral questions - and if we choose to stop living that too is a moral issue. 34 The law is more important The law is not more important q “It was and it is my conviction that it is one of the most important duties of any nurse to follow absolutely the doctor’s orders.” q “Personally, however, I was not of the opinion that such human beings should be killed; I had previously looked after these seriously ill persons with loving care for many years. Personally, I was of the opinion that, if it were ordered by the doctor and if it had been ordered by the government… then it must be right” Steppe, H. (1997). Nursing under totalitarian regimes: The Case of national socialism. In A. M. Rafferty, & J. Robinson (Eds.), History and the Politics of Welfare (p. 22). London: Routledge. 35 The professional codes are enough The professional codes are not enough q The codes assist you to identify the ethical issues involved in your conflict or dilemma so that you can then use ethics to address the issues and, if necessary, make a choice between them 36 12 2/9/24 Sources of ethics Theological ethics q Is the ethics of religious belief and is based on religious texts and writings q May also be based on traditional behaviour, or rules that have arisen from religion 37 Sources of ethics Secular ethics q Is derived from man and includes logic, reason and a moral compass q Does not come from God, religion or other supernatural origin However theological and secular ethics do have similarities that will be discussed in more detail when we return to ethics over the coming weeks 38 Meta-ethics Meta-ethics q Is the study of morality q What is the origin of ethical principles? q What is ‘good’? q What is ‘bad’? q How do we distinguish a good act from a bad act? q What is the difference between what is right versus what is wrong? 39 13 2/9/24 Normative ethics Normative ethics q It is a subjective study of moral decision-making q It seeks to reach a consensus on what constitutes right action and what constitutes wrong action q One example: if I do not want something to be done to me then I should not do it t someone else 40 Normative ethics Normative ethics involves reasoning about how we ought to live our lives and flourish. It raises questions about: q the principles of right ACTION q Our MOTIVES in acting. q the significance of CONSEQUENCES and which are the right ends to promote; q CHARACTER and what kinds of persons we should become. 41 Ethical conflict Ethical conflicts occur when our personal values differ from those of others q On what principles do we base our decision? q On what principles do others base their decisions? 42 14 2/9/24 Questions Please bring any questions you have about this lecture to your weekly tutorial 43 References International Council of Nurses. (2021). ICN Code of ethics for nurses. https://www.icn.ch/resources/publications-andreports?category=_all&year=2021 Nursing and Midwifery Board of Australia. (2018). Code of conduct for nurses. http://www.nursingmidwiferyboard.gov.au/CodesGuidelines-Statements/Professional-standards.aspx Nursing and Midwifery Board of Australia. (2016). Registered nurse standards for practice. http://www.nursingmidwiferyboard.gov.au/Codes-GuidelinesStatements/Professional-standards.aspx Staunton, P.J., & Chiarella, M. (2020). Law for nurses and midwives (9 th ed.). Elsevier. 44 45 15