Guardianship, The public Advocate and Trespass to the person

Question 1

What are the functions of the public advocate office/ what do they do? (5)

Answer 1

1. Complaints - services, treatment or attitudes provided by government, community & voluntary organisations
2. Protection from abuse - allegations of abuse, maltreatment or exploitation of someone with a disability may be investigated by the Office
3. Guardianship - the Public Advocate may be appointed as a guardian
4. Community Visitors - volunteers who work as “watchdogs” to check standards & adequacy of services
5. Independent Third Persons - must be present when a disabled person is interviewed by police

Question 2

What is the definition of a legal guardian?

Answer 2

A legal guardian is a person who has the legal authority to care for the personal interests of another person (has responsibility for the well being of the person)

Question 3

VCAT is now able to appoint a guardian to someone. What are the three criteria required fro VCAT to be able to appoint a guardian?

Answer 3

1. The person has a disability,
2. The person is unable to make reasonable judgements in respect to all or any matters relating to his/her circumstances, &
3. The person is in need of a guardian.

Question 4

There are 2 types of guardians appointed by VCAT. What are they?

Answer 4

(i) Plenary - have the same powers as a parent over a child e.g. where they shall live, work, consent to health care & can refuse treatment. This one is generally for a long period of time.
(ii) Limited - have only specific powers / time limit - where a ‘one off’ decision is required or where the patient requires decisions to be made on a temporary basis

Question 5

When VCAT is decided who to appoint as legal guardian what points must they consider? (this person is not always going to be a family member)

Answer 5

A person who:

~ is willing to act

~ has no conflict of interest

~ will encourage independence

~ will protect the represented person from abuse & exploitation

~ will make decisions considering the wishes of the represented person.

Guardians must act in the ‘best interests’ of the represented person – consider his/her wishes, protect, encourage, advocate

Question 6

What do Administrators do for a patient when appointed?

Answer 6

~ organize the business affairs (financial/legal affairs of the represented person (not health related affairs)

~ will act in the best interests of the represented person

~ must be a suitable person with expertise or there is a special relationship with the represented person (e.g. relative)

~ administrator’s interest must not conflict with those of the represented person.

Question 7

What is the difference between an enduring guardian and a VCAT appointed plenary guardian?

Answer 7

Little difference except who does the appointing:

(i) VCAT when the patient is incompetent (VCAT appointed guardian) or,
(ii) the patient (appointor) does so when he/she is competent (Enduring guardian). A guardian appointed by VCAT has more ability to withdraw or refuse treatment on behalf of the patient, whereas an enduring guardian can be over ridden in such decisions

Question 8

There are three types of trespass to the person. What are they and give an example.

Answer 8

CIVIL ASSAULT apprehension of unwanted physical contact threat may be inferred from words or actions need not be actual harm absence of consent defendant has the means to carry out the threat

BATTERY the actual application of force or touching of a person absence of consent person need not be aware of the touching

FALSE IMPRISONMENT Physical restraint the intentional & unauthorised restriction of a person’s movement restriction must be total achieved by: * actual force - mechanical/chemical * psychological intimidation or * assertion of authority no specific length of time

Question 9

What is the difference between criminal and civil battery?

Answer 9

In civil law: the actual application of force or touching of a person in the absence of consent. The person need not be aware of the touching.

In criminal law: ~ There is an intention to create fear / harm ~ The act is commonly associated with battery

Question 10

What is false improsonment?

Answer 10

• The intentional and unortheridsed restirction of a person
• Restriction mudt be total
• Achieved by (i) Actual force (chemical or mechanical) (ii) Psychological intimidation or (iii) Assertion of authority
• No specific length of time

Question 11

What are some defenses that can be used to assault and battery?

Answer 11

• the threat or physical contact was an accident
• the situation was an emergency
• the action was taken in self-defence
• use no more force than is necessary i.e. proportionate response
• the action was taken for the protection of others e.g. patients
• the action taken was for the protection of property - proportionate value

Question 12

under what circumstances can a person be restrained? (must be justifiable)

Answer 12

Legislative intervention

• Mental Health Acy 1986 - the person is an involuntary pt
• Health Act 1958 - person is suffering from a notifiable disease
• Crimes Act 1958 - police powers of arrest

Common Law defences

• For the patient’s own protection
• For the protection of others - patients/staff
• For the protection of property

Question 13

What issues need to be considered before deciding to restrain a patient?

Answer 13

* the medical indications

* the criteria for the use of any restraint

* the use of alternatives based on a thorough assessment

* types of restraints which are acceptable/ appropriate

* patient consent & documentation

* criteria for monitoring & re-evaluation

Question 14

What did the Guardianship & Admiinistration ACt 1986 (VIC) establish?

Answer 14

The Office of The Public Advocate and The Guardianship and Administration Board

Question 15

What are the ellements of open disclosure?

Answer 15

1- an apology or expression of regret (includig the word sorry)

2- A factual explanation of what happened

3 - An opportuinty for the patient to relate their exerience and

4- An eplanation of the steps being taken to manage the vent and prevent recurrence

Question 16

What is the doctrine of vicarious liability?

Answer 16

Employers are largely responsible for the actions of employees and are therefore also resposible if there is an adverse event. This also means that employers insurance will cover the damage expenses.

Question 17

What is a Sentinel event and Just culture?

Answer 17

Sentinel event - clear cut events that occur indipendently of a patients condition and commonly reflect hospital system and process deficiencies and result in unnecessary outcomes for patients.

Just culture - A culture in which frontline personnel feel comfortable disclosing error - including their own - while maintaining professtional accoutability

Question 18

Asside from open disclosure and vicarious liability, what are some other outcomes when patients suffer injury related to sub-standard delivery of health care?

Answer 18

Employer action - possible termination

Coroners inquest - if patient dies

Disciplinary hearing - VCAT, APRHA, NMBA

Health Services Commissioner (VIC) - investigates complaints (health ombudsperson)

Question 19

What is the differneces between the Tort system and Safety movement when it comes to negligence claims?

Answer 19

Tort System

• Litigation
• Focus on individual
• Adversarial approach –> secrecy
• Adverse effects on clinicians career and mental health

Safety Movement

• Quality improvement
• Focus on process
• Collaborative approach –> transparency
• Career- enhancing and therapeutic for clinicians