DLEPP

Question 1

Describe the elements of a Human Right

Answer 1

Social or public goal
Focus on the dignity of persons
Equality and non-discrimination
Participation of individuals and groups in matters that affect them to protect human rights
Rights imply entitlements
Human rights are interdependent
Almost never absolute and may be limited

Question 2

What is a right to health?

Answer 2

A broad concept that encompasses the determinants of health including:
Access to health care
Safe drinking water and adequate sanitation
Safe food
Adequate nutrition and housing
Gender equality

Question 3

What are the limitations to a right to health?

Answer 3

It does not refer to:

Guarantee of a person’s good health or right to be healthy

Question 4

How does right to health differ from a right to health care?

Answer 4

Right to health care only encompasses the provision of medical services and access to them. It is thus a branch of a broader concept, which is a right to health.

Question 5

Discuss the concept of right to health in Australia.

Answer 5

There is no right to health or right to health care in Australia. It is somewhat recognised in the Health Insurance Act through Medicare.

Question 6

What happens when a country breaches a right to health?

Answer 6

Right to health is monitored by committees which provide written reports to countries. IF a state party ignores the recommendations, or breaches a human right, there is nothing that international human rights law can do except shun them in the international community and damage their reputation.

However, if a country incorporates a right to health into domestic laws, it enables the courts to adjudicate violations.

Question 7

What are some arguments for and against a right to health in Australia?

Answer 7

For:
Enables people to have a legal remedy should the government breach its obligations with respect to the right to health.
Protect people from discrimination and reduce health inequities in marginalised populations.
Force the government to prioritise the right to health
Improve government policy making and administrative decision making

Against:
Fear of increased litigation
It would be undemocratic because it might give unelected judges too much power over important social issues
concern that there are not enough resources to give effect to the right to health
it would restrict rights, as to define a right is to limit it

Question 8

What are the components needed for someone to be competent?

Answer 8

They must understand information, retain information, use information to weigh up decision and communicate the decision

Question 9

What are the components required for informed consent?

Answer 9

Must be given freely and voluntarily
Must cover the procedure to be performed
Must cover the person performing the procedure
Musst have sufficient information (risks, benefits and alternatives)
Must be given by a competent patient

Question 10

When can an action of battery or negligence be used by a patient in regards to informed consent components?

Answer 10

A failure to meet components 1-3 (freely given, cover procedure and cover person performing) can result in an action in battery

A failure to comply with component 4 & 5 (sufficient information and not a competent patient) can result in an action in negligence

Question 11

What law was espoused from the Rogers v Whitaker case?

Answer 11

A doctor has a duty to warn a patient of a material risk inherent in proposed treatment. A risk is material if:
A reasonable patient would attach significance to the risk (e.g. permanent disability or death) OR
The doctor is aware the patient would attach a significance to a risk if they were informed of it

Question 12

What is therapeutic privilege?

Answer 12

Can withhold information from a patient if you are confident that it would cause serious harm to the patient’s health or welfare.

E.g. when doctor did not warn patient of blindness site effect for mental health drug - reasoning that they would likely get hysterical blindness or refrain form using the drug they needed

It is rare for this to be successful and should only be used for life-saving treatment if really necessary.

Question 13

Describe the law in regards to a patient’s ability to refuse or demand medical treatment

Answer 13

An individual can refuse treatment (including life-saving treatment) provided they are assessed as competent.
E.g. Brightwater care group v Rossiter: was not terminally ill but required PEG to be fed but requested PEG taken out

There is no duty of a doctor to provide a particular type of treatment, especially if it is not clinical indicated. (although should offer to arrange a second opinion)

Question 14

Outline the law regarding Abortion in Queensland

Answer 14

Abortion in QLD is illegal unless:
The doctor believes, in good faith, the pregnancy will cause greater physical and mental harm to the woman than if it were aborted. This can include current and future mental & physical health, but NOT economic or psychosocial wellbeing. This can only occur up until 22 week gestation.

Question 15

Outline Abortion in regards to the Criminal Code sections (i.e. actions that lead to criminal charge in regards to abortion).

Answer 15

224: Any person who, with intent to procure the miscarriage or a women, unlawfully administers the drug is liable to imprisonment for 14 years
225: any woman with intent to procure her own miscarriage administers herself a drug, then is liable to imprisonment for 7 years.
226: any person who unlawfully supplies to or procures for any person a drug knowing it is intended to be used for miscarriage is liable to imprisonment for 3 years
282: doctors can surgically instigate abortion if it would save the woman’s life. If the administration by a health professional of a substance to a patient would be lawful under this section, it would only be if the pregnancy is endangering a woman’s life.

Question 16

Outline the law regarding negligence claims for wrongful life

Answer 16

An action brought by a child complaining of negligent conduct before birth, which results in its birth and had their been no negligence it would not have been born. (i.e. the child would have been better off not being born at all)

THIS IS NOT VALID ACTION IN AUSTRALIA.
This is because courts see it as “devaluing” the lives of disabled (among other regions)

Question 17

Outline the law regarding negligence claims for wrongful birth.

Answer 17

An action brought by the parent of an initially unwanted or unintended child (regardless of disability or not) as a consequence of negligence before birth. (e.g. unsuccessful sterilisation or contraception)

Question 18

Under what circumstances can confidential information be disclosed without legal consequences?

Answer 18

No breach if the patient consents to the disclosure
Mandatory reporting (child abuse, notifiable diseases, drug and alcohol abuse, etc)
Courts can compel production of medical records (but try to question the necessity of it)
May disclose to other health carers directly involved in the patient’s care.
Giving information in good faith about a person’s medical fitness to hold a driver’s license
If you believe the person may have been involved in an indictable offence

Question 19

Who owns medical records and when can access be denied?

Answer 19

Medical records are owned by the doctor. Patients may ask for medical records without reason and it should be granted within 30 days and can charge for administration fee.

Can deny access if:
Information would pose a serious threat to someone
Information would have an unreasonable impact on someone else’s privacy
Information related to existing or anticipated legal proceedings
Request is frivolous or vexatious

Question 20

Outline the Australian Privacy Principles

Answer 20

1. Open and transparent management of personal information
2. Anonymity and pseudonymity
3. Collection of solicited personal information should only be used for the purpose it was collected
4. Dealing with unsolicited personal information
5. Notification of collection of personal information
6. Use or disclosure of personal information (can only be used for diagnosis and treatment but may be other times when need to provide it for third party government service)
7. Direct Marketing (get permission if you want to use information for marketing purposes)
8. Cross border disclosure of personal information
9. Use or disclosure of government related identifiers (don’t use them)
10. Quality of personal information (obligation to keep accurate and up to date)
11. Security of personal information (take reasonable steps to protect it)
12. Access and Correction
13. Correction of personal information (fix any errors; if you don’t think its incorrect provide written notice and method of complaint)

Question 21

What patients are deemed incompetent?

Answer 21

Unconscious
Minors/Children
Heavily intoxicated
Dementia
Mental Illness affecting ability to weigh information provided

Incompetency fluctuates and therefore must be reassessed for each medical decision.

Question 22

Describe the hierarchy of decision making for incompetent patient according to the Guardianship and Administration Act

Answer 22

1. Advanced Health Directive
2. Guardian (if one has been appointed by the Guardianship and Administration Tribunal)
3. Power of Attorney (Financial power of attorney does NOT count)
4. Statutory Health Attorney:
   a. Spouse of the adult if the relationship is close and continuing
   b. A person > 18yo who has care of the adult but is not paid
   c. A person >18yo who is a close friend or relation but not a paid carer

Question 23

What are the limitations of substitute decision makers?

Answer 23

Cannot consent to:
Live organ donation
Sterilisation
Termination of a pregnancy
Participation in medical research
Electroconvulsive therapy

Question 24

What happens when there is a disagreement between Statutory Health Authority and medical practitioner?

Answer 24

Need to contact the adult guardian who will have the final say.
The only exception is a medical emergency where:
Health care decisions need to be made urgently as there is imminent risk to the patient’s health.
Health care decisions need to be made to prevent significant pain or distress tot he adult and is not reasonable practical to obtain consent.
In the above scenarios, the doctor can act as they see fit.

Question 25

What is the substituted judgement test? What are the criticisms?

Answer 25

Guardianship and Administration Act:
To the greatest extent possible, the person’s own views and wishes must be sought out and taken into account in the decision making process. (i.e. putting yourself in their place and making a decision based on what you think they would do)

Criticisms:
Disproportionate consideration of passing comments.
Relatives abuse this by representing their own values.
Limited to those who were competent at some point.

Question 26

What are the key elements for a successful negligence claim?

Answer 26

1. The defendant owed the plaintiff a duty of care
2. The defendant breached their duty of care by falling below the standard of care expected
3. The defendant’s breach caused the plaintiff to suffer and injury or financial loss
4. The damages were foreseeable and are quantifiable

Question 27

How is a duty of care established and how do you determine the standard of care expected?

Answer 27

Duty of care: an obligation imposed on a person to take reasonable care to ensure that they do not, through their conduct, cause another person to suffer harm.
Duty of care is well-established in doctor-patient relationships.

For matters of advise:
Use Rogers v Whitaker
must satisfy the material risk requirements

For matters of treatment and diagnosis:
Use the Bolam principle
A doctor is not negligent if he acts in accordance with a practice accepted at that time as proper by a responsible body of medical opinion even though other doctors may adopt a different practice

Question 28

How is negligence proved to have caused injury or financial loss?

Answer 28

“but for” test
But for the actions of the doctor, would the outcome have been different.

(can be used to apply a patient’s history of non-compliance to prove that they wouldn’t have changed their actions even if a doctor intervened)

Question 29

What kind of medical mistakes can lead to a claim of negligence?

Answer 29

Failure to:
Disclose risks
correctly diagnose
attend a patient
provide advice
properly train reception staff
refer to specialist
take a medical history

Lack of knowledge or reasonable care

Breach of confidentiality

Question 30

What are the doctor’s obligations in regard to notifiable conditions under the Public Health Act?

Answer 30

Under the Public Health Act:
A doctor:
MUST notify the chief executive if there has been a clinical or provisional diagnosis of a Notifiable condition
Pathology specimen indicates that the person whom the sample was taken from, has the notifiable condition or has had the condition.
If a lab received a request for examination of a Notifiable condition.

Question 31

What are the mechanisms to contain an outbreak of a controlled notifiable condition.?

Answer 31

The Chief executive may apply to a magistrate for any of the following orders for a person with a controlled notifiable condition:
Initial examination order:
if reasonably suspect a person have a condition and constitutes an immediate risk to public health. Can detain person and force examination but not treatment.

Behavioural order: order someone to refrain from certain conduct, visiting particular places, or be under supervision by another person

Detention order:
The person is detained (but given the option to volunteer first) if they refuse treatment

Question 32

What are the criminal offences involved with notifiable diseases?

Answer 32

Criminal offences to those who:
transmits a serious disease intentionally
puts another person at risk of contracting the disease

NO offence is:
the other person knew and accepted the risk of contracting the disease

Question 33

Outline the Gillick Competency test

Answer 33

First test a child’s competency in the same manner as you would for an adult. The Gillick test is done on a case by case basis with particular reference to the child’s level of maturity and understanding of proposed treatment.
Understanding and maturity need to be assessed by child’s actions, questions and current life situation

Question 34

Detail the law regarding a child’s ability to refuse life saving treatment

Answer 34

A child may refuse life saving treatment HOWEVER:
Medical staff take this to court
Courts are reluctant to give a minor the right to refuse health care (even if parents might agree with child’s decision, they may not have the child’s best interest in mind)

Question 35

Discuss the limitation on parents consent or refusal or treatment

Answer 35

If a parents decision is considered to be other than in the best interests of the child, the medical professional can make an application to court.
Parents cannot consent to the following procedures without court approval:
Life organ donation
Non-therapeutic sterilisation
Gender reassignment
Cosmetic procedures

Question 36

What are the ethical, social and cultural aspects of death & dying?

Answer 36

Ethical:
Consent and competency
AHD + absence of these
Terminal sedation
Aggressive pain relief
Withdrawal of life support

Social:
each patient has different preferences on death and dying. Social support, touch, family involvement, lifestyle impacts, etc. are all taken into account for someone at end of life care

Cultural Issues:
Cultural issues may be raised in end of life care. As everyone has different values, beliefs, practices, roles, rituals and spiritual beliefs.

Question 37

Detail the law regarding withholding and withdrawal of treatment from incompetent patients.

Answer 37

WWLSM can be differentiated from euthanasia or murder in law by the application of the act vs omission distinction.

The act vs omission distinction can be summarised as follows:
If the WWLSM is considered an act then a doctor would be guilty of murder as they are intentionally performing an act that is killing the patient.
Only imposes criminal liability for an omission if there is a duty to act in a particular way.
Doctor only owes a duty to provide treatment to a patient if it is in his or her best interests
Treatment that is futile cannot be in a patient’s best interests and so there is no longer any duty on the part of the doctor to provide this treatment.
One of the premises of the distinction is that the omission enables the underlying disease to kill the person.

So it is legal when:
Treatment is futile and is not in accordance with good medical practice AND the treatment imposes a burden not justified by the potential advantages or is not in patient’s best interests

Question 38

Detail the law in relation to the notification of a notifiable disease.

Answer 38

It is a notifiable condition.
A doctor must notify the chief executive if there has been a clinical or provisional diagnosis of a notifiable condition.
Notification can be made using the appropriate form or in some cases by telephone.
Notification can be made using an anonymity code but should Queensland Health require further information regarding the identity of the patient, the doctor is required to provide this information. Notifications are placed onto a notifiable conditions register. The notifications are to remain confidential except in some special circumstances.

Question 39

What will you tell a patient in relation to contact tracing?

Answer 39

Contact tracing involved contacting people from whom the patient may have caught the disease as well as those to whom the patient may have passed the disease.
Contact tracing is important to contain and prevent the spread of disease.
There are 3 ways to constitute it: Q Health, patient, diagnosing doctor
It is an offence to give false or misleading information to a contact tracing officer.
Wherever possible, de-identifying information will be used to protect the patient’s confidentiality.

Question 40

Why is confidentiality important in the therapeutic relationship?

Answer 40

Confidentiality is important because:
Promotes trust
Promotes honesty in the consultation
Respects the privacy of the patient
Respects patient's autonomy and right to control their health information
Encourages disclosure