L25: Legal issues in Professional Practice UQ

Question 1

What are the 3 relevant legal principles and obligations that affect your practise as a health professional?

Answer 1

1. legal “duties” — duty of care, duty of good faith and what informed consent means
2. professional conduct
   
   1. codes of practice and ethical practice
   2. unprofessional conduct and misconduct; and
   3. complaints and how complaints are managed
3. thoughts about writing as a professional - the legal implications for clinical notes and reports

Question 2

What is the major idea of legal considerations as heath professionals?

Answer 2

Patient’s safety is paramount

Question 3

What are the 3 main legal duties as a health professional?

Answer 3

Physical or mental injuries

1. the duty of care (Avoidable accidents occur ( could be due to negligence))
2. the duty to act in good faith
3. the duty to obtain informed consent

Question 4

What are 4 considerations of meeting the duty of care?

Answer 4

1. how obvious is the thing that gives rise to the risk
2. what are the potential consequences
3. what can to be done to overcome the risk (Double check with someone else)
4. is the person (the patient) relying on you and your knowledge and expertise to be safe from the risk ((vulnerable/position of power)

Question 5

What is the duty of care (at common-law)?

Answer 5

to take reasonable care to practise physiotherapy in accordance with the profession’s accepted standards in order to avoid foreseeable risk of injury to patients

Question 6

What are the 3 characteristics of duty of care (statutory obligation)- a person does not breach a duty to take precautions against a risk of harm unless?

Answer 6

Generally

A person does not breach a duty to take precautions against a risk of harm unless—

1. the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
2. the risk was not insignificant; and
3. in the circumstances, a reasonable person placed in the position of the person would have taken the precautions

Question 7

What are the 4 characteristics of duty of care (statutory obligation)- to decide whether a reasonable person would have taken precautions against a risk of harm, the court will consider (amongst other things)?

Answer 7

1. the probability that the harm would occur if care were not taken;
2. the likely seriousness of the harm;
3. the burden of taking precautions to avoid the risk of harm; and
4. the social utility of the activity that creates the risk of harm

Question 8

What are the 4 characteristics of duty of care (statutory obligation)- standard of care for professionals?

Answer 8

1. A professional does not breach a duty arising from …professional service, if …the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion, by a significant number of respected practitioners in the field, as competent professional practice.
2. That there are differing peer professional opinions accepted by a significant number of respected practitioners does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section
3. Peer professional opinion does not have to be universally accepted to be considered “widely accepted”
4. This section does not apply to liability arising in connexion with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service

Question 9

What are the 2 limbs of consent and informed consent?

Answer 9

1. duty to warn a patient of a material risk
2. duty to obtain consent to examine and treat

Question 10

What are the 2 characteristics of “consent involves a duty to warn a patient of a material risk”?

Answer 10

1. this element of consent is an aspect of the duty of care
2. a patient cannot truly consent if they are not told of material risks

Question 11

What are the 2 characteristcs as if a risk is materal for informed consent?

Answer 11

1. a reasonable person, if warned of the risk, would have been likely to attach significance to the risk
2. if the practitioner was or reasonably should have been aware that the person would be likely to attach significance to the risk

Question 12

What are the 3 characteristics of consent to examine for informed consent?

Answer 12

1. Consent to examine and treat a patient involves implied or express permission from a patient to be touched, examined or manipulated
2. The more personal, private, or potentially embarrassing the touching, examining or manipulation — the greater the need to obtain express consent
3. Failure to obtain permission may otherwise be a trespass, assault or unprofessional conduct

Question 13

Mr Rezk examined a patient and in doing so he:

• had her lie naked on an examination table without offering any covering
• allowed a tissue to brush over the patient’s genital area
• bent her legs up (still no covering)
• ran a tissue lightly over the upper thighs and pubic area

What is the problem?

Answer 13

This was held to be “unprofessional conduct” (on a number of bases – but one basis was that he did not get express permission to examine and touch her in such a personal way).

Question 14

What are the 4 characteristics of duty of good faith?

Answer 14

1. a common-law duty that practitioner must act in the patient’s best interests
2. in a conflict or potential conflict between the practitioner’s interests and the patient’s interests —the patient’s best interests must be preferred
3. Preferring the patients best interests must be both actual and apparent
4. You must act in the patient’s best interests, and you must appear to act in the patient’s best interests

Question 15

Whar are 4 examples of duty of good faith?

Answer 15

1. don’t over treat
2. can affect relationships — cannot have a personal relationship
3. do not involve patients in personal financial/business matters
4. don’t refuse to treat because of detriment to you

Question 16

What are 6 characteristics of existing legislation of professional standards?

Answer 16

1. Health Practitioner Regulation National Law Act 2009 (Qld)
2. Health Ombudsman Act 2013 (Qld)
3. Privacy Act 1988 (Cwth)
4. Work Health and Safety Act 2011 (Qld)
5. Anti-Discrimination Act 1991 (Qld) and
6. Federal Human Rights Acts

Question 17

What are 4 characteristics of Health Practitioner Regulation National Law Act 2009 of professional standards?

Answer 17

1. establishes the national registration body
2. establishes the Physiotherapy Board of Australia
3. imposes registration requirements
4. interacts with the HO Act to manage investigations and disciplinary matters

Question 18

What are 6 characteristics of professional standards?

Answer 18

1. focussed on the protection of the health and safety of the public
2. promotes professional practice
3. promotes high standards of service
4. promotes public confidence in the management of complaints
5. establishes the processes and right to investigate complaints and impose disciplinary action
6. establishes the jurisdictional connexion with QCAT or registration boards

Question 19

What are the health service complaints?

Answer 19

Complaints about a health service or a health service provider are made to the Health Ombudsman who must decide whether to accept the complaint or reject the complaint.

Question 20

What are 6 characteristics “if the HO accepts the complaint then the HO must” in health service complaints?

Answer 20

1. assess the complaint
2. facilitate a local resolution (if possible)
3. take immediate action (for notifiable matters)
4. investigate the complaint
5. refer to the complaint to the National Agency —AHPRA
6. refer to QCAT (disciplinary action)

Question 21

What are 6 complaints if immediate actions is required for health service complaints?

Answer 21

1. practising while intoxicated by alcohol or drugs
2. financially exploiting the patient
3. sexual misconduct
4. discouraging the person from seeking clinically accepted treatment
5. false claims about the benefits of a treatment
6. false claims about the practitioners qualifications

Question 22

What is the National law mandatory reporting by employers?

Answer 22

If an employer of a registered health practitioner reasonably believes the health practitioner has behaved in a way that constitutes notifiable conduct, the employer must notify the National Agency (AHPRA) of the notifiable conduct.

Question 23

What are 3 categories of breaches of professional conduct of National Law?

Answer 23

1. professional misconduct (eg. physiotherapy practices)
2. unprofessional conduct (Regulations and systems (eg. overcharging))
3. unsatisfactory professional performance (eg. poor notes)

How to conduct yourself outside physio practice can affect professional practice (eg. posts)

Question 24

What are 3 characteristics of professional misconduct?

Answer 24

1. conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience
2. multiple instances of unprofessional conduct - considered together - may amount to conduct substantially below the standard reasonably expected of a registered health practitioner
3. conduct of that health practitioner - in connexion with the practice of the profession or outside professional conduct, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession

Question 25

What are 8 characteristics of unprofessional conduct?

Answer 25

1. a contravention by the practitioner of the national law, whether or not the practitioner has been prosecuted for, or convicted of, an offence in relation to the contravention; and
2. contravention of.
   
   1. a condition to which the practitioner’s registration was subject;
   2. an undertaking given by the practitioner to the Board that registers the practitioner;
3. a conviction for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practice the profession;
4. providing health services that are excessive, unnecessary or otherwise not reasonably required for the person’s wellbeing; and
5. influencing or attempting to influence the conduct of another registered health practitioner in a way that may compromise patient care;
6. accepting a benefit as inducement, consideration or reward for referring another person to a health service provider or recommending another person use or consult with a health service provider
7. offering a benefit, or reward in return for the person referring another person to the practitioner or recommending to the another person that the practitioner use a health service provided by the practitioner
8. referring a person to, or recommending that a person use or consult, another health service provider, health service or health product if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of that interest to the person before or at the time of giving the referral or recommendation.

Question 26

What is unsatisfactory professional performance?

Answer 26

When the knowledge, skill or judgment possessed, or care exercised by, the practitioner is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

Question 27

What can the board do (7)?

Answer 27

1. take no further action
2. take immediate action (cease practising)
3. require health assessment
4. caution
5. accept an undertaking from
6. impose conditions on a registrant
7. refer the matter to AHPRA or QCAT

Question 28

What are 5 responsibilities of The Physiotherapy Board of Australia as professional standards?

Answer 28

1. registration
2. investigating complaints (notifiable incidents)
3. refer complaints to AHPRA
4. convening disciplinary hearing —or refer to QCAT
5. to impose discipline (restrictions, fines, de-registration)

Question 29

What are 5 characteristics of “a person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that” as assessing advertising requirements under the National Law?

Answer 29

1. is false, misleading or deceptive or is likely to be misleading or deceptive
2. offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer
3. uses testimonials or purported testimonials about the service or business; or
4. creates an unreasonable expectation of beneficial treatment; or
5. directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

Question 30

What are 5 deals of the Privacy Act as other legislation?

Answer 30

1. the collection of data
2. the use and disclosure of information
3. data quality — is it accurate
4. data security —that it cannot be access by unauthorised persons
5. openness

Question 31

What are 5 characteristics of the Privary Act as Other Legislation?

Answer 31

1. access the information and to correct it — how patients get access to their file
2. identifiers (how do you identify a person)
3. anonymity
4. sending data (outside Australia) to a place with no privacy protections (transborder date flows)
5. collecting sensitive information (such as race, sexual behaviour and preference, religion, political beliefs)

Question 32

What are 3 characteristics of the The Work Health and Safety Act as Other Legislation?

Answer 32

1. to ensure as far as is reasonably practicable that a person’s safety and health is not affected by the manner in which the business undertaking is conducted
2. a person’s safety and health is not affected when they are free from the risk of injury or illness
3. goes beyond reasonableness or duty of care —is almost an absolute obligation

Question 33

What are 2 characteristics of the Anti-Discrimination Act as Other Legislation?

Answer 33

1. unlawful discrimination —less favourable treatment in providing a service — because of a particular attribute
2. sexual harassment

Question 34

What are 12 attributes for which it is unlawful to refuse service, provide a lesser service, impose unreasonable conditions for service as Other Legislation?

Answer 34

1. Sex or Gender Identity
2. Relationship status
3. Parental status
4. Race
5. Age
6. Impairment (including physical and intellectual impairment)
7. Religious belief or activity
8. Political beliefs or activities
9. Trade union or employer association activity
10. Sexuality (whether they are heterosexual, homosexual or bisexual)
11. Lawful sexual activity
12. Pregnancy or breastfeeding

Question 35

What are 5 key steps for professional writing?

Answer 35

• Step 1 — why am I writing
• Step 2 - what is the question/problem
• Step 3 - stick to facts (not conclusions)
• Step 4 - if required to draw conclusions —do so based on the facts
• Step 5 - consider who may be the readers and how do I assist them (it not to show how smart you are)

Question 36

What are 4 characteristics of step 1: why (Identify the purpose or goal of professional writing)?

Answer 36

1. clinical notes for your practice
2. meeting professional standards
3. a report for another health professional
4. a legal report — giving expert opinion

Question 37

What are 3 characteristics of step 2: the question (You must understand the question, the presenting problem)?

Answer 37

1. am I asked a specific question?
2. is this to record examination results?
3. what is the presenting issue —what does the patient tell you?

Question 38

What are 3 characteristics of Facts (“verifiable measurable things or do things”) are different to Conclusions (what the facts mean)?

Answer 38

1. don’t start with conclusions
2. facts are things that can be seen, heard, smelt, felt and tasted
3. establish and record “facts” before recording or making conclusions

Question 39

What are 3 characteristics of step 4: draw conclusions?

Answer 39

1. conclusions ought to be linked back to:
   
   1. the problem/question; and
   2. the facts
2. if you cannot draw a conclusion —say why
3. make recommendations (only if required)

Question 40

What are 4 characteristics of step 4: the readers?

Answer 40

1. who is the principal reader of the report or the clinical notes
2. what does the principal reader need to know (don’t include information just because it is interesting or because it tells the reader that you know a lot of “stuff’)
3. other readers - what is their interest
4. does my writing protect me — does it verify that I have acted professionally