Health Law I and II

Question 1

Discuss the relationship between law and health

Answer 1

1. Structure and Form
- Regulating professions and practices

2. Adjudicating Disputes

3. Standards and Norms
- Equality norms and human rights

4. Law as a Social Determinant of Health
- directly e.g. seatbelts and pollution
- indirectly e.g. equality

Question 2

Describe the aim of torts

Answer 2

Torts aim to:

• Provide compensation for physical, psychological, and economic harm to a person or damage to property caused by the wrongful act of another.
• Act as a deterrent.
• Provide an ethical framework guiding how we should treat each other (e.g., the intentional torts).
• issue of defensive medicine and fears of liability: increase in testing
  
  • anxiety
  • false positives
  • cost
  • over-stretched system ^[note: could also be influenced by peer reputation]

Question 3

Discuss the key elements of torts as they relate to negligence

Answer 3

Key elements:

• Duty of care
• Breach e.g. failure to reach duty of care
• Damage from breach
• Causation: that act demonstrably caused harm
• Remoteness: reasonably foreseeable

Question 4

Discuss cases relating to regulation of practice and changing ethical norms

Answer 4

• Diagnosis and treatment:
  
  • Bolam v Friern HMC (1957) 1 WLR 582 - Dr. not negligent if aligned with professional standards
  • Rogers v Whitaker (1992) 175 CLR 479 - risk should be communicated, questions of patient autonomy
  • CLA (2002) NSW. s.5O defense - over perception of litigious society
• Information disclosure:
  
  • Rogers v Whitaker (1992)
  • S.5P
• Negligence & Defensive Practice
  
  • Nola Ries et al, ‘A qualitative interview study of Australian physicians on defensive practice and low-value care: “it’s easier to talk about our fear of lawyers than to talk about our fear of looking bad in front of each other”’ BMC Medical Ethics (2022) 23:16.

Question 5

Discuss intentional torts

Answer 5

• important to protect civil liberties
• no need for malice- harm itself is the issue
• INTENT is key
• battery= touching without consent
• relevance in medicine: false imprisonment and illegal detainment in secure units, permanent restriction on freedom; Indigenous Australians and redress for Stolen Generations
  Intentional torts underpins consent and bodily integrity.

Question 6

Discuss the definition of murder and manslaughter

Answer 6

Court must be satisfied that:

1. Act causes death (action)
2. Intend to cause death or know that death is a probable consequence of actions (recklessness) (intent)

Need to assess whether lawful justification or excuse for the act exists. Mercy is not a lawful excuse.

Some exceptions:

1. Assisted dying legislation:
   
   • For example, Voluntary Assisted Dying Act 2017 (Vic) section 80
     
     • A registered health practitioner who, in good faith and without negligence, acts under this Act believing on reasonable grounds that the act is in accordance with this Act is not in respect of that act:
       a) guilty of an offense;
       b) liable for unprofessional conduct or professional misconduct;
       c) liable in any civil proceeding;
       d) liable for contravention of any code of conduct.

Some exceptions:

2. Re A (Children) (Conjoined Twins) [2001] Fam 147

Manslaughter: Medical

• Gross negligence
  
  • R v Pearce (unreported Supreme Court of Queensland 15 November 2000)
  • Medical Board of Queensland v Pearce [2001] QHPT 004.
  • Patel v The Queen [2012] HCA 29.

Question 7

Define consent

Answer 7

“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”

Treatment is unlawful (criminal or tort) without consent or other lawful authority.

Two questions:

1. What are we protecting when the law requires consent?
2. How is the law functioning in this regard?

Question 8

Discuss the practicalities of consent

Answer 8

• Does not have to be in writing.
• Can be verbal.
• Exceptions: Necessity as a legal defense.

Question 9

What are the requirements to consent?

Answer 9

Presumption that adults have capacity Re MB [1997] 2 FCR 514:
- Adult status achieved in most states and territories at 18 (SA 16).
- Must understand the nature and effect and consequences of proposed treatment but capacity not static or permanent – can be variable and may mean that a person could not enter into a contract but could still make treatment decisions.
- Hunter v New England Area Health Service v A [2009] NSWSC 761 per McDougall J [24].

Question 10

Discuss the elements of consent

Answer 10

A competent adult may consent or refuse consent, even to life-saving treatment.

Elements of consent:

i) Understanding (capacity)
ii) Information
iii) Voluntariness
iv) Covers the act to be performed.

If misled to the purpose of the treatment, no consent.

• Re MB case: all adults have caacity, that is function based.
• Capacity is a scale

i) Understanding or capacity:
- Not about the quality or rationality of the decision itself but **about the process.
- Apparently ‘irrational’ decisions must be respected as long as the person has capacity.
- Decisions to refuse life-sustaining treatment must be respected.
- Re C 1994 - refusing amputation upheld by court
- Re B 2002 - complicated spinal haemorhage; refused ventilation

ii) Information:
- To avoid claims in battery (criminal or civil), patients have to be “advised in broad terms of the nature of the proceeding to be performed” Rogers v Whitaker (1992) 175 CLR 479.
- see also 1974 - consent for different procedure amounts to battery
- 1949 - c-section and sterilisation and battery

iii) Voluntariness:
- No coercion by any person – family, friend, or health professional.
- Beausoleil v Sisters of Charity [1964] 19 DLR (2d) 65. - ‘gave in’ to epidural; not valid consent
- 1993 - Re T: influence vs undue influence

iv) Covers the act to be performed:

Question 11

Discuss questions of capacity

Answer 11

Adults who lack capacity:

• Guardianship and other legislation. – kind of in conflict with UN
• Only applies if a person lacks capacity for the particular decision (functional or context-based rather than status).
• A substitute decision-maker makes the decision (not the next of kin).

Adults who lack capacity:

• In the Australian Capital Territory, and in some circumstances in South Australia, the patient must be found to be lacking capacity due to a particular medical condition (e.g., the patient suffers from some illness, disorder, intellectual condition which has led to their incapacity).
• In Western Australia where the patient is ‘unable to make reasonable judgments in respect of any treatment proposed to be provided.’
• in other words, varies state to state

In the Australian Capital Territory:

• Guardianship and Management of Property Act 1991 (ACT)
• Powers of Attorney Act 2006 (ACT) - purely financial, or financial and medical
• Medical Treatment (Health Directions) Act 2006 (ACT)
• Advance directive (health direction) or
• An enduring power of attorney that was appointed by the patient (for health care decisions) before they lost capacity;
• A guardian appointed by the ACT Civil and Administrative Tribunal
• A ‘health attorney,’ who is the first of the following to apply:
  o The patient’s domestic partner – where the relationship is close and
  o The person who cares for the patient (without being paid);
  o A close relative or friend of the patient.
• The courts in ACT may also provide authorization for health care continuing interventions.

Substitute Decision-Makers:

In the majority of jurisdictions, a substitute decision-maker acting on behalf of an adult patient lacking capacity should:

• Take into account the patient’s wishes.
• Adopt the least restrictive approach.
• Consider the patient’s best interests or their interests and welfare.

**UNCRPD: Art 12. Equal protection : emphasis on respecting the rights, will, and preferences of persons with disabilities. Concept of relational autonomy

Question 12

Discuss consent and children

Answer 12

Children

Consent for children in healthcare:

• Parents consent in the best interests of the child.
• The court can intervene if questions arise about the child’s best interests.

Notable case:
- Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s case)

Mature Minors

Understanding consent for mature minors:

• Gillick competence as a standard.
• Ability to consent not solely dependent on age.
• Parents’ ability to consent for a child ends when the child is Gillick competent.

Question 13

Discuss confidentiality and privacy

Answer 13

• AMA guidelines: express up to date consent

Why is it important?
- public and individual interest
- talk to doctors openly

Exceptions:

Cases:
- child capacity
- RWH late term abortion and Board
- 90: assess criminal to less secure unit, reaches confidentiality for public safety
- 86: differences between surgeon and GP, leak to press
- 76: psychologist did not warn, person dies

Confidentiality and privacy
- Privacy ACT legislates for all data in all regards
- health data is especially regarded as sensitive
- accessing medical records is also regulated: what is recorded, and space for correction, and for how long etc.

Note layers of regulation:
- Privacy ACt
- Health records act