Health Professions and the Law

Question 1

What is a Law?

Answer 1

A system of rules to govern the conduct of a defined group of people (community, state/province/territory, country, international).&raquo_space; Laws develop continually in response to
social, political and economic pressures.&raquo_space; Cybercrime + Laws on terror

Question 2

Characteristics of a law

Answer 2

The law must be enforceable: Agencies to enforce the law (e.g. police) Established courts to decide&raquo_space; The law
must carry punitive outcomes: Punishments if law is broken

Question 3

Who makes the law?

Answer 3

Laws are created through Legislation in Parliament (State and Federal)
This legislation may be referred to as a Statute or
Act
Laws (legislation) be passed by both parts of the
Parliament (House and Senate)
The Law becomes final when it is approved by the
“Head of State” of Australia – Queen Elizabeth II

Question 4

Can the Law be changed?

Answer 4

Legislation
Statutes/Acts/Legislation can be reintroduced to Parliament and amended

Common Law
* In the superior courts the Judge may interpret a law
(especially the vague bits) and make a ruling based on
this.
* This alteration is then part of the law (referred to a
Precedence)

Question 5

The Law in Australia

Answer 5

Federal/Commonwealth Law
* Commonwealth (Cth) law is also referred to as Federal law.
* It is made through the Federal Parliament and is enforceable in all States and Territories
* Trade, immigration, defense, foreign policy

State Law
* Applies to the specific State or Territory only
* Schools, hospitals, police, prisons

Local Laws (Council By-laws)
* Applies to each designated region in a State/Territory
* Local roads, Childcare and Aged Care, waste removal

Question 6

Federal law overrides State and Territory law

Answer 6

Northern Territory
* Rights of the Terminally Ill Act 1995 (NT)

Federal Government
* Euthanasia Laws Act 1997

Question 7

APHRA Tribunal court

Answer 7

Lower Court (Local Magistrates Court)

Question 8

What laws relate to Health Practitioners

Answer 8

Health Professionals must obey the law in all respects and are as subject to Criminal Law as all citizens.
There are additional laws which are specifically relevant to Health Practitioners*, for example:
* Registration (AHPRA)
* Privacy
* Medical Records
* Therapeutic Goods
* Human Rights
* Occupational Health and Safety

*In Victoria there are 59 Acts and Regulations relevant to
Health Care

Question 9

Civil and criminal Legal Systems

Answer 9

The aim of criminal law is punishment, retribution, deterrence
and rehabilitation. e.g. prison, community order, fines

The aim of civil law is compensation. e.g. awarding of damages

Question 10

Civil and criminal Legal Systems

Answer 10

The aim of criminal law is punishment, retribution, deterrence
and rehabilitation. e.g. prison, community order, fines

The aim of civil law is compensation. e.g. awarding of damages

Question 11

Civil and Criminal Legal Systems: Who brings the action to the
Court/Tribunal?

Answer 11

In criminal law, the State brings the action against the defendant. e.g. The Crown vs Jones

In civil cases, the individual or plaintiff brings the action against the defendant, no crime has been committed. e.g. Smith vs Brown

Question 12

What is a crime?

Answer 12

A wrong which is punishable because a law (defined by the
Crimes Act or the Criminal Code) has been broken.
Drug and alcohol
Violence
Economic
Environmental
Property
Cybercrime
Organised/Transnational

Question 13

What is a Civil Action or Dispute?

Answer 13

Civil law deals with the rights and obligations that people have in relation to each other. One person/party (plaintiff) brings a civil action against the other (defendant). For example:
* Property damage
* Injury
* Negligence
* Breach of contract
* Defamation

Question 14

Can a Health Practitioner be sued?

Answer 14

In Civil Law if a person (or company) wishes to seek
compensation from another person (or company) they can bring a Civil Action (‘sue’ them).

If a patient believes that your treatment has resulted in
personal damages they may bring a Civil Suit against you. They
will be seeking financial compensation for these damages.

Civil matters may be settled out of court (between the
lawyers) or may go to a Civil Court where a single Judge
presides (i.e. no jury).

Health Practitioners are required to have Professional
Indemnity Insurance (this will pay for any damages awarded to the Plaintiff).

Question 15

Medical Negligence/Malpractice

Answer 15

Failure to provide professional services with the skills usually exhibited by responsible and careful members of that profession resulting in injury, loss or damage to the party (person) contracting those services.
The Plaintiff (patient) sues the defendant (Health Professional) for damages.
Damages are monetary compensation for loss or injury.

Question 16

Civil action

Answer 16

The Plaintiff (person bringing the Civil Action) needs to demonstrate causation between the Health Practitioner’s action or inaction and the adverse outcome.
* “It was because of your incompetent treatment that my leg fell off”

The Defendant needs to show that they demonstrated an appropriate standard of care.
* “I did what any practitioner would have done”

Question 17

Evidence in medical negligence

Answer 17

Standard of care is ‘that of a reasonable health practitioner in the defendant’s position’

Standard of care is established by the Court, and may require the input of Expert Witnesses

An Expert Witness can be called by either side to give the court their opinion of what would constitute an appropriate standard of care

Additional evidence would include medical records created by the HP

Question 18

Professional Misconduct

Answer 18

Where a practitioner has violated the Code of Conduct of their profession they may be investigated by a Tribunal set up by AHPRA. A Tribunal is equivalent to a lower Court.

Following the Tribunal’s decision the practitioner may:
* Be given a warning
* Have their registration suspended
* Be referred to a higher court (such as a Magistrate’s
court)
* Or any other decision deemed appropriate by the AHPRA Tribunal