Exam Flashcards
Two main sources of law:
Common law (or case law) Legislative (statue) law
Common (case) law:
Judge-made law. Decisions made by judges in the higher courts become presents or rules, which judges in the lower courts are obliged to follow. This is known as the doctrine of precedent.
Legislative (statute) law:
Law which has been enacted by a legislature or governing body such as the Australian parliament. Legislation may be passed that overrides or limits common law.
National Law:
Regulates the practice of registered health professionals.
Criminal Law:
Involves a person committing an offence as it is outlined in a statute. A criminal case can only ever be brought by the state (the police on behalf of the people of the State) against an individual. The case must be proven to a very high standard, ‘beyond reasonable doubt.’ Because if someone is found guilty of a criminal offence, the punishment may be very harsh and involve the loss of freedom.
Civil Case:
Is tha standard of proof that is much lower than criminal law and is based on one or other of the parties proving their case on the ‘balance of probabilities’. The reason why the standard is lower is because the penalties of losing a case do not include a loss of liberty but rather a loss of money. Civil cases can result in the plaintiff (patient) being compensated financially by the defendant.
Professional Misconduct:
Generally very serious (criminal in nature) and is a breach that occurs outside the domain of practice. E.g. Nurse committed sexual assault or stole from a patient.
Unprofessional Conduct:
Is where a nurse breaches a particular practice standard; E.g. violating confidentiality, or failing to administer medication correctly.
What constitutes consent:
- Written
- Verbal
- Implied
Three elements of consent are:
- The consent is freely and voluntarily given and is not coerced.
- The consent given is based on all the information and that the person giving consent is fully informed.
The person giving consent has the legal capacity to give or to refuse consent for treatment.
Only under these circumstances can the health care staff treat without fear of being charger with assault:
- It is a time critical situation.
- It is an emergency to save a life or prevent further serious injury.
- The patient (or guardian) to unable to give consent.
- Treatment is given because it is in the patients best interests.
Assault and battery:
Assault is the threat of touch, without permission from the person being touched. Battery is the actual contact.
- Assault does not necessarily have to be physical.
- It is sufficient for a patient to feel threatened to constitute assault.
- You may treat a patient with good intentions but if sone so without consent then it is assault.
Criminal assault:
Must have the elements of a crime. There must be:
- Intent to cause harm.
- Application of force.
- A high degree of reckless indifference to the probability of harm occurring as a result of an act or omission.
Civil assault:
- Standard of proof is lower for civil assault.
- The person must feel the threat of harm.
- Physical contact need not necessarily have occurred.
4 elements for someone to be found to have been negligent:
- There must exist a duty of care.
- There must be a breach of the standard of care.
- There must be damage to the patient as a result of the negligence.
- The damage must be reasonably foreseeable and a direct link must exist between the patients injury and the action by the health professional (causation).
Confidentiality:
Both a legal, professional and ethical duty. Protection of another persons personal information and includes details such as name, address, phone number, medical particulars and other personal details.
Privacy:
Privacy is a right under common law. It includes physical privacy like leaving curtains closed during a physical examination in addition to your personal information.
Mental health act:
- Legalisation that provides framework for the treatment of those who are mentally ill or disordered.
- It aims to protect the rights of those who are mentally ill or disordered.
- Each state and territory has its own act.
Mentally ill:
Someone suffering from a mental illness and owing it to that illness there are grounds for believing that care, treatment, or control of the person is necessary for the persons own protection from serious harm, or for the protection of others from serious harm. (Continuing, not other care of a less restrictive kind available).
Mentally disordered:
A mentally disordered person is someone whose behaviour for the time being is so irrational that there are reasonable grounds for deciding that temporary care, treatment or control of the person is necessary to protect them or others from serious physical harm.
Community treatment orders
Provide a community based alternative to involuntary inpatient treatment. They are intended to allow consumers, who might otherwise be detained in an inpatient unit, to live in the community and receive care, treatment and support in a less restrictive setting.
Guardianship:
The guardianship tribunal can make a guardianship order where a person has a disability and due to that disability is incapable of managing their affairs. A disability under the Guardianship act can include:
- A mental illness, within the meaning of the mental health act.
- An intellectual, physical, psychological or sensory disability.
Clinical incident:
Any unplanned event that occurs and consequently results or has the potential to cause harm.
Root cause analysis:
When a mistake is made and it is classified as high risk, it should be investigated throughly.
