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HLTEN 509- APPLY LEGAL AND ETHICAL PARAMETERS TO NURSING PRACTICE.

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Presentation on theme: "HLTEN 509- APPLY LEGAL AND ETHICAL PARAMETERS TO NURSING PRACTICE."— Presentation transcript:

1 HLTEN 509- APPLY LEGAL AND ETHICAL PARAMETERS TO NURSING PRACTICE

2 Sources of Law Two major sources of law:  Legislation  Primary legislation (Statutes, Acts of Parliament)  Secondary legislation (regulations and by-laws)  Case Law  Also referred to as Common Law (or judge-made)  Individual decisions made by judicial decision makers (judges) in Courts of Law and other legal hearings  (Crisp & Taylor, 2001, p. 426)

3 In Australia there are two kinds of law as follows: Statute Law is Parliament made law expressed in an Act.  The Commonwealth Parliament and the various State Parliaments are empowered to pass laws. Accordingly, there are variations from state to state. Some Acts of Parliament may outline broad guidelines or principles but leave the administrative detail to be defined later in regulations. This is known as subordinate or delegated legislation.

4 In Australia there are two kinds of law as follows: Common Law is law which developed and continues to evolve in the courts.  This judge-made law was brought to Australia by white settlers. It relies heavily on precedent and is reasonably uniform throughout the nation. As it is not made in Parliament, it is sometimes referred to as unenacted law.

5 Five key steps to make law in Victoria 1. Policy development –  the complex process by which ideals, ideas and practical needs are formalised and expressed in party or Independent Members' policies.

6 Five key steps to make law in Victoria 2. Draft Bill stage –  the conversion of party (usually, though not exclusively, Government) policy into a series of statements and clauses that will eventually be placed before Parliament as a Bill. For the Government this task is undertaken by Cabinet.

7 Five key steps to make law in Victoria 3. Parliamentary processes –  for many members of the public this is the most bewildering stage. Generally a Bill may be initiated in either House of the Parliament of Victoria although in practice most Bills originate in the Lower House. All financial Bills must be introduced in the Legislative Assembly.

8 Five key steps to make law in Victoria  Examination of the Bill is then conducted in three formal stages: Permission to introduce a Bill into Parliament and to proceed with it is obtained in the First Reading. No debate is allowed. In the Second Reading, some time after the First Reading, the principles but not the details of the Bill are debated. At the Third Reading, further debate may be permitted, but this is restricted and rarely resorted to. The Bill is then passed.

9 Five key steps to make law in Victoria 4. Royal Assent –  the Queen, represented by the Governor, approves the Bill. It is now referred to as an Act of Parliament.

10 Five key steps to make law in Victoria 5. Commencement –  the time from which the law, as specified in the Act of Parliament, applies. In Victoria this occurs on a day specified in the Act or if the Act so provides, on a day proclaimed by the Governor or if not otherwise stated, 28 days after Royal Assent.

11 Criminal Law  Essentially rules of behaviour, backed up by the sanction of punishment, which govern our conduct in the community, having regard to other people and their property  (Staunton and Whyburn, 1997,p. 8)  E.g. Drugs Misuse Act 1986 which can impinge on nurses.  Police usually uphold and enforce.  (Crisp & Taylor, 2001, p. 426)

12 Civil Law  Deals with the resolution of private disputes between individuals and/or organisations.  Has many divisions within it  E.g. Family law, industrial law, workers compensation, and common-law division (contract law, negligence, defamation and nuisance  Civil law remedies usually involve payment of compensation, re-instatement of job etc. »(Crisp & Taylor, 2001, p. 426)

13 Torts  A tort is a civil wrong made against a person or property.  Most important torts involving nurses are negligence and trespass to the person.  Defamation is also of some concern. (Crisp & Taylor, 2001, p. 427)

14 Negligence  The tort of negligence relates to incidents when a person has suffered an injury to his or herself or his or her property as a result of another’s act or omission, which fell below an expected standard of care.  For action to succeed, the complainant must prove that the person or organisation which caused the injury owed them a duty to take reasonable care (known as duty of care); that their was a breach of that duty; and that the damage that the injured person suffered occurred as a reasonable direct result of the breach of duty (Luntz & Hambly, 1995)

15 Confidentiality and Privacy  Confidentiality refers specifically to restrictions upon private information revealed in confidence when there is an implicit or explicit assumption that the information will not be revealed to others.  Privacy refers to one’s ownership of one’s body or information about one’s self. (Crisp & Taylor, 2001, p. 430)

16 Invasion of Privacy – Law?  All Australian privacy statutes, including the Privacy Act 1988, regulate the way in which personal information can be collected, stored, used and disclosed.  Australians generally can’t cite a right to privacy as a civil right in the eyes of the law, but could take action relating to breach of confidentiality, trespass, negligence, etc.

17 Invasion of Privacy – Law? However on the 16/6/03, a Qld District Court Senior Judge, Tony Skoien, awarded a plaintiff compensation, not for inappropriate dealing with her personal information, but for invasions of her privacy generally. ( Judge Skoien recognised that his judgment was a bold first step in Australia – but considers it to be both logical and desirable.)

18 Assault and Battery  Assault occurs when an individual experiences the threat that a battery will occur.  Battery is committed by intentionally bringing about a harmful or offensive contact with the person of another. »(Crisp & Taylor, 2001, p )

19 Legal Capacity Adults and Consent  Any person over 18 years, barring mental incapacity, can give or withhold consent.  Exceptions:  Emergency situation where person incapable due to severe injury. Then the duty and standard of care of the health professional over-rides need for consent.  Statutory provisions Eg. Blood alcohol readings after MVA  Spouse treatment Eg. Spouse consent not needed!  Blood transfusion Can refuse. Only over-ridden through court order.

20 Legal Capacity Children 18 years and below:  Common law states a child can give a valid consent if they understand the nature and consequences of the proposed treatment.  Most health authorities adopt 14 years as an accepted age for such purposes. However, usual hospital policy is that the year old signs consent form, as does parent or guardian.  For children under 14 years, consent of parent or guardian is required.  Exceptions Parental consent not required in emergency situation. Statutory provisions:- blood transfusions, ward of state, at risk children.

21 Complaints against Nurses Several broad categories:-  Criminal convictions  Professional conduct matters  Matters of clinical competence and safety  Improper or unethical behaviours  Impairment due to physical or mental incapacity or addiction to alcohol or other drugs  Registration irregularities »(Ref: Staunton & Chiarella, 2003, p. 194.)

22 Protection to the title Nurse Because the titles of registered and enrolled nurses are protected under the statutes, most statutes carry an offence known colloquially as a ‘holding out’ offence, where people ‘hold themselves out’ to be a health care professional or to have specialist qualifications when, for whatever reason, they do not! »(Ref: Staunton & Chiarella, 2003, p. 197.)

23 Right of appeal All states and territories allow the right to appeal a decision of a disciplinary inquiry or tribunal. Just as registering authorities have power to remove a nurse’s name from the Register or Roll, they also have power to restore it, if it is considered advisable or proper to do so. »(Ref: Staunton & Chiarella, 2003, p. 197.)

24 What is nursing?  The definition of nursing posed by Virginia Henderson (1966) was adopted by the International Council of Nurses (ICN) in ‘The unique function of the nurse is to assist the individual, sick or well, in the performance of those activities contributing to health, its recovery, or to a peaceful death that the client would perform unaided if he had the necessary strength, will, or knowledge. And to do this in such a way as to help the client gain independence as rapidly as possible.’ »Crisp & Taylor, 2001, p. 376.

25 Acts and Regulations which impact on Nurses

26 Public Health and Wellbeing Act 2008 (Vic)  The Public Health and Wellbeing Act 2008 (Vic) has been passed by the Victorian Parliament and received Royal assent on 2 September  Its provisions are due to commence over a period ending on 1 January This will allow for the making of new regulations and other implementation measures.  The Act is effectively a rewrite of the Health Act 1958 (Vic) and is designed to modernise the Victorian public health system.  Other Acts amended by this Act:  In addition to repealing the Health Act 1958 (Vic) the Act amends numerous other Acts including: Coroners Act 1985 (Vic); Ambulance Services Act 1986 (Vic); Mental Health Act 1986 (Vic); and Health Services Act 1988 (Vic).

27 Public Health and Wellbeing Act 2008 (Vic) Included in the amendments are:  a set of guiding principles relating to the exercise of powers under the Act.  Included in such principles is the precautionary principle which provides that if a public health risk poses a serious threat, a lack of scientific certainty ought not postpone preventative or control measures to contain the risk;  new provisions relating to information requests following the death of a child and a requirement that the coroner notify the Consultative Council on Obstetric and Paediatric Mortality and Morbidity about the particulars of any maternal death or death of a child reported to the coroner;  powers concerning the conduct of a public inquiry in respect of serious public health matters;  a legal framework for the management and control of infectious diseases and notifiable conditions;  protection to those required to provide information under the Act from liability in respect of the information including contraventions of other Acts or laws and claims of unprofessional conduct or a breach of professional ethics;  protection for registered medical practitioners who "in good faith and with reasonable care" perform a test or examination as a result of a compulsory testing order issued by the Chief Health Officer.

28 Public Health and Wellbeing Regulations 2009 The Public Health and Wellbeing Regulations were made by the Governor in Council on 15 December The Regulations took effect on 1 January The new regulations replace the ten sets of regulations that were made under the previous Health Act 1958 including the: Health (Consultative Council on Obstetric and Paediatric Mortality and Morbidity) Regulations 2002) Health (Exempt Businesses) Regulations 2005 Health (Immunisation) Regulations 1999 Health (Infectious Diseases) Regulations 2001 Health (Legionella) Regulations 2001 Health (Pest Control) Regulations 2002 Health (Prescribed Accommodation) Regulations 2001 Health (Prescribed Consultative Councils) Regulations 2002 Health (Registration of Premises) Regulations 2002 Health (Seizure) Regulations 2003

29 The Public Health and Wellbeing Regulations 2009 contain provisions that cover: Consultative Councils; Nuisances; Prescribed Accommodation and Registered Premises; Aquatic Facilities; Cooling Tower Systems and Legionella Risks in Certain Premises; Pest Control; and Management and Control of Infectious Diseases, Micro- organisms and Medical Conditions

30 Schedule 4 of the regulations - NOTIFIABLE CONDITIONS; Schedule 5 of the regulations - MICRO- ORGANISMS – ISOLATED OR DETECTED IN FOOD OR DRINING WATER SUPPLIES; Schedule 7 – MINIMUM PERIOD OF EXCLUSION FROM PRIMARY SCHOOLS AND CHILDREN’S SERVICES CENTRES FOR INFECTIOUS DISEASES CASES AND CONTACTS.

31 Notifiable Conditions Group A Anthrax Botulism Cholera Chikungunya virus Diptheria Food-borne and water-borne illness Haemolytic uraemic syndrome Japanese encephalitis Legionellosis Measles Murray Valley encephalitis virus Haemophophilus influenzae type B Hepatitis A Meningococcal infection Paratyphoid Poliomyelitis Plague Rabies Severe Acute Respiratory Syndrome (SARS) Smallpox Tularaemia Typhoid Viral haemorrhagic fevers Yellow fever

32 Notifiable Conditions Group B Barmah Forest virus Arbovirus infections Blood lead greater than 10 micrograms/ decilitre Brucellosis Campylobacter infection Creutzfeldt-Jakob disease (CJD) Cryptosporidiosis Dengue virus infection Hepatitis B (newly acquired) Hepatitis B (unspecified) Hepatitis C (newly acquired) Hepatitis D Hepatitis E Hepatitis viral (not further specified) Herpes zoster Influenza (laboratory confirmed) Kunjin virus Leprosy Leptospirosis Listeriosis Lyssavirus – Australian Bat lyssavirus Lyssavirus – other Malaria Mumps Mycobacterium ulcerans Pneumococcal infection (invasive) Psittacosis (ornithosis) Pertussis Q Fever Ross River virus Rubella Congenital rubella Salmonellosis Shiga toxin and Verotoxin producing Escherichia coli Shigellosis Tetanus Tuberculosis Variant CJD Varicella

33 Notifiable Conditions Group C Chlamydia trachomatis infection Donovanosis Gonococcal infection Syphilis (less than 2 years duration) Syphilis (2 years or more duration or unspecified) Congenital syphilis Group D Acquired Immunodeficiency Syndrome (AIDS) Human Immunodeficiency Virus (HIV) infection

34 Health Professions Registration Act 2005 (VIC)  This Act came into effect on 1 July  This is the single Act for all health professions.  It repealed 11 separate Acts including the Nurses Act 1993 (Vic).  The Nurses Board of Victoria is the instrument to implement this Act for nursing.

35 Health Professions Registration Act 2005 (VIC) The 12 Health Boards under the Act:  Nurses Board of Victoria  Medical Practitioners Board of Victoria  Psychologists Registration Board of Victoria  Pharmacy Board of Victoria  Dental Practice Board of Victoria  Optometrists Registration Board of Victoria  Osteopaths Registration Board of Victoria  Podiatrists Registration Board of Victoria  Physiotherapists Registration Board of Victoria  Chiropractors Registration Board of Victoria  Chinese Medicine Registration Board of Victoria  Medical Radiation Practitioners Board of Victoria

36 Health Practitioner Regulation National Law Act 2009 The Australian Health Practitioner Regulation Agency (AHPRA) was formed by an Act of Parliament and is bound by the Health Practitioner Regulation National Law as in force in participating jurisdictions, and its Regulations. Health Practitioner Regulation National Law Act 2009 Health Practitioner Regulation National Law Regulation

37 Australian Capital Territory Health Practitioner Regulation National Law (ACT) Act 2010 New South Wales Health Practitioner Regulation Act 2009 Northern Territory Health Practitioner Regulation (National Uniform Legislation) Act 2010 Queensland Health Practitioner Regulation National Law Act 2009 South Australia Health Practitioner Regulation National Law (SA) Act 2010 Tasmania Health Practitioner Regulation National Law (TAS) Act 2010 Victoria Health Practitioner Regulation National Law (VIC) Act 2009 Western Australia Health Practitioner Regulation National Law (WA) Act 2010

38 Student Registration Under the National Law, the National Boards for each of the 10 professions have the power to register students from As from March 2011 Nursing Students have been registered with the National Board. Education providers send this information to AHPRA. There are no registration fees for students. The National Law limits the role of each National Board to: Register students; Maintain a student register that is not publicly available; Deal with notifications about students: Whose health is impaired to such a degree that there may be a substantial risk of harm to the public, or Have been charged with an offence, or have been convicted or who are found guilty of an offence punishable by 12 months imprisonment; Who have or may have contravened a condition of the students registration or an undertaking given by students to the Board

39 Nursing and Midwifery Board of Australia As from the 1 July 2010 practitioners of the Nursing and Midwifery professions across Australia were registered and their registration recognised in all States and Territories. The Board was established under the Health Practitioner Regulation (administrative arrangements) Act, Members of the inaugural Nursing and Midwifery Board of Australia were appointed by the Australian Health Workforce Ministerial Council for a period of three years on 31 August The Boards functions to do the following: Registering nursing and midwifery practitioners and students Developing standards, codes and guidelines for the nursing and midwifery profession Handling notifications, complaints, investigations and disciplinary hearings Assessing overseas trained practitioners who wish to practice in Australia Approving accreditation standards and accredited courses of study

40 Mandatory Reporting Section 140 of the National Law requires that a registered health practitioner must notify the Board if, in the course of practising their profession, they form a reasonable belief that another registered health practitioner has behaved in a way that constitutes ‘notifiable conduct’. Notifiable conduct is defined as when a practitioner has:  1. practised the profession while intoxicated by alcohol or drugs, or  2. engaged in sexual misconduct in connection with their profession, or  3. placed the public at risk of substantial harm in their practice because they  have an impairment, or  4. placed the public at risk of harm during their practice because of a significant  departure from professional standards.

41 Section 130 of the National Law requires a registered health practitioner to report to the relevant National Board, within 7 days, if any of the following events has occurred: – the practitioner is charged with an offence punishable by 12 months imprisonment or more – the practitioner is convicted of an offence punishable by imprisonment – the practitioner is no longer covered by professional indemnity insurance that complies with the Board’s standard – the practitioner’s practice rights at a hospital or other health facility have been withdrawn or restricted due to the practitioner’s health, conduct or performance – the practitioner’s Medicare billing privileges are withdrawn or restricted – the practitioner’s right to prescribe or otherwise use scheduled medicines is cancelled or restricted – the practitioner’s registration under the law of another country is cancelled, suspended, or made subject to a condition or restriction.

42 Section 131 of the National Law requires a registered health practitioner to write to the relevant National Board, within 30 days to notify of: – a change in the practitioner’s principal place of practice – a change in the practitioner’s address for correspondence from the Board – a change in the practitioner’s name. ‘Principal place of practice’ is defined under the National Law as the address declared by the practitioner to be the address at which the practitioner is predominantly practising the profession. If the practitioner is not practising, or not practising predominantly at one address, then the practitioner’s principal place of residence will be used. The suburb and postcode of this address will be published on the online Register

43 Health Services Act 1988 (Vic) Purpose The purpose of this Act is to make provision for the development of health services in Victoria, for the carrying on of hospitals and other health care agencies and related matters. Objectives  The objectives of this Act are to make provision to ensure that--  (a) health services provided by health care agencies are of a high quality; and  (b) an adequate range of essential health services is available to all persons resident in Victoria irrespective of where they live or whatever their social or economic status; and  (c) public funds--  (i) are used effectively by health care agencies; and  (ii) are allocated according to need; and

44 Health Services Act 1988 (Vic) Part 7 – Miscellaneous Provisions, s. 141 makes provisions for confidentiality In general, part of this section states:-  ‘…A relevant person must not, except to the extent necessary - …give to any other person, whether directly or indirectly, any information acquired by reason of being a relevant person if a person who is or has been a patient in, or has received health services from, a relevant health service could be identified from that information.’ (in regards to the employed nurse, a person would be regarded as someone who ‘is or has been engaged or employed in or by a relevant health service, or performs work for a relevant health service;’)

45 Health Services Act 1988 (ca) purchasing arrangements for public hospitals and supply chain management by public hospitals provide value for money; and (d) health care agencies are accountable to the public; and (e) users of health services are provided with sufficient information in appropriate forms and languages to make informed decisions about health care; and

46 Health Services Act 1988 (f) health care workers are able to participate in decisions affecting their work environment; and (g) users of health services are able to choose the type of health care most appropriate to their needs.

47 Health Service Act 1988 (Vic) Principals applying to hostels, nursing homes and supported residential services (a) residents are entitled to high quality health care and personal care, to their choice of registered medical practitioner or other provider of health services and to an informed choice of appropriate treatment; (b) residents should be provided with a sufficient level of nutrition, warmth, clothing and shelter in a home-like environment;

48 Health Service Act 1988 (Vic) Principals applying to hostels, nursing homes and supported residential services (c) services should be provided in a safe physical environment and the residents' right to choose to participate in activities involving a degree of risk should be recognised; (d) residents should be treated with dignity and respect and are entitled to privacy;

49 Health Service Act 1988 (Vic) Principals applying to hostels, nursing homes and supported residential services (cont:) e) residents should be provided with and be encouraged to participate in activities appropriate to their interests and needs and to physical and social rehabilitation; (f) residents are entitled to social independence including the right to choose and pursue friendships with members of either sex, to practise religion and cultural customs and to exercise rights as citizens;

50 Medical Treatment Act 1988 (Vic) Purpose  To clarify the law relating to the right of patients to refuse medical treatment  To establish a procedure for clearly indicating a decision to refuse medical treatment  To enable an agent to make decisions about medical treatment on behalf of an incompetent person

51 Medical Treatment Act 1988 (Vic) Includes following definitions:  Medical Treatment  Means the carrying out of: An operation: or The administration of a drug or other like substance; or Any other medical procedure – but does not include palliative care  Palliative Care  Includes The provision of reasonable medical procedures for the relief of pain, suffering and discomfort; or The reasonable provision of food and water

52 Medical Treatment (Enduring Power of Attorney) Act 1990 and Medical Treatment (Agents) Act 1992 These supplemental Acts of legislation (to Medical Treatment Act 1988) permits a competent adult to confer power on another person to make a decision about medical treatment on his or her behalf in the event that he or she becomes incompetent. A refusal of treatment certificate applies only to current medical condition; however, there is no express requirement that the medical condition be a terminal or curable one..

53 Medical Treatment (Enduring Power of Attorney) Act 1990 and Medical Treatment (Agents) Act 1992 A statutory offence of medical trespass is created whereby a medical practitioner must not, knowing that a refusal of treatment certificate applies to a person, undertake or continue to undertake any medical treatment to which the certificate applies, being treatment for the condition in relation to which the certificate was given.

54 Guardianship and Administration Board Act 1986  This Act with the Mental Health Act 1986 and the Intellectually Disabled Persons Service Act 1986, was passed by the Victorian Parliament in 1986 for the protection of incapacitated persons.  Its purpose ‘is to enable disabled persons to have a guardian or administrator appointed if needed’. The meaning of ‘disability’ is defined as “intellectual impairment, mental illness, brain damage, physical disability or senility”.  The Act also established the Guardianship and Administration Board, and a Public Advocate.

55 Guardianship and Administration Board Act 1986  A Guardianship Order allows the person appointed to make personal or lifestyle decisions for the represented person.  An Administration Order can be applied for to appoint a person as administrator of a person’s financial affairs.  The Board has the power to revoke an enduring power made under the Medical Treatment Act 1988.

56 Guardianship and Administration Board Act 1986 The Public Advocate has a responsibility for promoting the rights and independence of persons of all ages with disabilities and has powers to advocate on their behalf.

57 Acts and Regulations pertaining to the control of drug use In Victoria  Drugs, Poisons and Controlled Substances Act 1981  Drugs, Poisons and Controlled Substances Regulations Commonwealth Laws  The Therapeutic Goods Act 1989  The Narcotic Drugs Act 1967  The Customs Act 1901  The National Health Act 1953

58 Drugs, Poison and Controlled Substance Act 1995 and Amendments (Vic) This Act outlines:  What is a poison or controlled substance, who is authorised to have possession and licences.  Outlines the function of the Poison Advisory Committee  How the substances are manufactured  How sale is to proceed  Outlines what is an offence

59 Standard for the Uniform Scheduling of drugs and poisons in Australia The Standard for the Uniform Scheduling of Drugs and Poisons is a document used in the regulation of drugs and poisons in Australia. The document is only a recommendation to the States, however, and differences still exist in the regulation of drugs and poisons between Australian states.

60 Schedule 1 (Defunct) Poisons of plant origin that can be dangerous to health.  Available only from Medical Practitioners.  Eg. Comfrey

61 Schedule 2 - Pharmacy Medicine Poisons for therapeutic use which are available to the public only from pharmacies, or where pharmacy service are not available from people licensed to seel these poisons Eg. Aspirin, Panadol  Which are substantially safe in use but where advice or counselling is available if necessary  Can be easily recognised by the consumer  Do not require medical diagnosis or management

62 Schedule 3 - Pharmacist Only Medicine Poisons for therapeutic use, which are dangerous or liable to abuse Their availability to the public is restricted to supply by a Pharmacist, Medical Practitioner, Dentist and Veterinary Surgeon Eg. Folic acid, cimetidine, aminophylline liquid oral preparations  Which are substantially safe in use but require professional advice or counselling by a pharmacist

63 Schedule 4 - Prescription only Medicine/ Animal Prescription Remedy Poisons that are restricted to medical, dental, veterinary prescription or supply These substances or preparations are intended for therapeutic use, the safety and efficacy of which requires further evaluation Eg. Antibiotics, antihypertensive drugs, cardiac drugs  The use of which requires professional medical, dental or veterinary management or monitoring  Which are for ailments or symptoms that require professional medical, dental or veterinary diagnosis or management  The safety or efficacy of which may require further evaluation  Which are new therapeutic

64 Schedule 5- Caution Poisons of a hazardous nature, which are readily available to the public but require caution in handling, storage and use Eg. Propanil, aspirin for animals  Have low toxicity or a low concentration  Have a low to moderate hazard  Are capable of causing only minor adverse effects to human beings in normal use  Require caution in handling, storage or use

65 Schedule 6- Poison Poisons which are more readily available to the public but require caution. Moderate to high toxicity Which may cause death or severe injury if ingested, inhaled or in contact with the skin or eyes  With moderate to high toxicity  Which may cause death or severe injury if ingested, inhaled or in contact with the skin or eyes

66 Schedule 7 - Dangerous Poison Poisons which require special precautions in manufacture, handling, storage or use, or special individual regulations regarding labelling or availability Eg. Hydrogen sulphide, nicotine except when in Schedule 3, 4, or 6 or in tobacco for smoking  With high to extremely high toxicity  Which can cause death or severe injury at low exposures  Which require special precautions in their manufacture, handling or use  Which may require special regulations restricting their availability, possession or use  Which are too hazardous for domestic use or use by untrained persons

67 Schedule 8 - Controlled Drug (Possession without authority illegal) Poisons to which restrictions recommended for drugs of dependence should apply Eg. Cocaine, fentanyl, morphine, methadone, pethidine  Which are dependence producing  Which are likely to be abused or misused

68 Schedule 9 - Prohibited Substance Poisons which are drugs of abuse. The manufacture, possession, sale and use are limited to approved medical and scientific research. Eg. Cannabis, lysergic acid, heroin, GHB, Mescaline, MDMA (Ecstasy), psilocin, psilocybin  The sale, distribution, use and manufacture of such substances are strictly prohibited under the law

69 Schedule 11 – Drugs of dependence “Drugs of dependence’, includes all Schedule 8 poisons and some Schedule 4 poisons including benzodiazepines, appetite suppressants (Duromine, Tenuate Dospan) and destropropoxyphene (Doloxene, Digesic).

70 Coroners Act 2008 (Vic) The office of the coroner is primarily concerned with investigating fires or deaths which occur in specific unexplained circumstances – reportable and reviewable deaths. The Coroners Act 2008 came into force on 1 November 2009 and brought with it a number of changes and reforms. As a result of these changes the State Coroner's Office was re- established as the Coroners Court of Victoria, a specialist inquisitorial court. A Coronial Council of Victoria was also created to provide advice and make recommendations to the Attorney-General. There are also changes to the definitions of: reportable deaths medical procedure and examination reviewable deaths person placed in custody or care responsible person senior next of kin.

71 Coroners Act The changes affect medical and legal practitioners, and members of the Police, Country Fire Authority and Metropolitan Fire and Emergency Services Board. The key changes and their implications including penalty units can be viewed in the following documents in the publications section of the website: The coroner is a judicial officer who is responsible for the independent investigations of reportable deaths (and fires), with the objective of reducing the number of preventable deaths (and fires) and promoting public health and safety. In an investigation into a death, the coroner must find, if possible: The identity of the deceased person; The cause of death; and In certain cases, the circumstances in which the death occurred.

72 What is a reportable death? Reportable deaths are defined in section 4 of the Coroners Act 2008 as deaths where: The body is in Victoria; or The death occurred in Victoria; or The cause of the death occurred in Victoria; or The person ordinarily resided in Victoria at the time of death

73 In addition the death must also be one where: The death was unexpected; The death was violent or unnatural; The death resulted, directly or indirectly, from an accident or injury (even if there is a prolonged interval between the incident and death); The death occurs during a medical procedure or following a medical procedure where the death is or may be causally related to the medical procedure and a registered medical practitioner would not, immediately before the procedure was undertaken, have reasonably expected the death. A Medical Certificate of Cause of Death has not been signed and is not likely to be signed; The identity of the person is unknown; The death occurred in custody or care (as defined in the Coroners Act 2008); The person was a patient within the meaning of the Mental Health Act 1986; or The death is otherwise specified in section 4 of the Coroners Act The Coroners Act 2008 requires the reporting to the coroner of any reportable death.

74 Verification of death The Department of Health, Victoria (Feb 2010), considers that the following people should have the expertise to competently undertake a clinical assessment of a body to establish that death has occurred (‘verify death’) as they have undertaken relevant training: A Registered Nurse, and a Paramedic. Please note, an Enrolled Nurse is excluded from this list. Reportable and reviewable deaths must be reported to the coroner under the Coroners Act Please note: There is a legislative requirement for a registered medical practitioner to ‘certify death’ (A Medical Certificate of Cause of Death) under section 37 of the Births, Deaths and Marriages Registration Act 1996.

75 Equal Opportunity Act 1995 (Vic) The objectives of this Act are:  To promote recognition and acceptance of everyone’s right to equality of opportunity  To eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes  To eliminate, as far as possible, sexual harassment  To provide redress for people who have been discriminated against or sexually harassed.

76 Occupational Health and Safety Act 2004 (Vic) The objects of this Act are:  To secure the health, safety and welfare of persons at work  To protect persons at work against risks to health or safety  To assist in securing safe and healthy work environments  To eliminate, at the source, risks to the health, safety and welfare of persons at work  To provide for the involvement of employees and employers and associations representing employees and employers in the formulation and implementation of health and safety standards

77 Birth, Deaths and Marriages Registration Act 1996 (Vic) The main purpose of this Act is to provide for the registration of births, deaths, marriages and changes of name in Victoria. The objects of this Act are to provide for:  The registration of births, deaths and marriages in Victoria  The registration of changes of name  The keeping of registers for recording and preserving information about births, deaths, marriages, changes of name and adoptions in perpetuity  Access to the information in the registers in appropriate cases by government or private agencies and members of the public, from within and outside the State  The issue of certified and uncertified information from the registers  The collection and dissemination of statistical information

78 Human Tissue Act 1982 (Vic) This Act makes provisions for:  Donations of tissue by living persons  Blood donations and blood transfusion  Donation of tissues after death  Post-mortem examinations  Donations for anatomical purposes  Definition of death

79 Aged Care Act 1997 (Commonwealth) The objects of this Act are:  To provide for funding of aged care that takes account of the quality of the care; and the type of care and level of care provided; and the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and appropriate outcomes for recipients of the care; and accountability of the providers of the care for the funding and for the outcomes for recipients  To promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals

80 Aged Care Act 1997 (Commonwealth)  To protect the health and well-being of recipients of aged care services  To ensure that aged care services are targeted towards the people with the greatest needs for those services  To facilitate access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location  To provide respite for families, and others, who care for older people  To encourage divers, flexible and responsive aged care services

81 Children and Young Persons Act 1989 (Vic) The purposes of this Act are:  To establish The Children’s Court of Victoria’s as a specialist court dealing with matters relating to children and young persons; and  To provide for the protection of children and young persons; and  To make provision in relation to children and young persons who have been charge with, or who have been found guilty of, offences; and  To amend and consolidate for the purposes of the new Court the law relating to the jurisdiction and procedure of children’s courts.  The Act mandates certain professionals (including Nurses) to report physical abuse and neglect to Protective Services

82 Privacy Act 1988 (Cth) This act is intended to protect personal information which is collected by commonwealth government departments or agencies. The Act requires such bodies to comply with ‘Information Privacy Guidelines’ which govern:  The methods used to collect personal information  The storage and security of such information  The access by individuals to their personal records  The accuracy of the records  The use of the information and its disclosure to third parties

83 Health Records Act 2001 (Vic)  This Act creates a framework to protect the privacy of individuals’ health information. It regulates the collection and handling of health information.  The Act covers health information collected and handled in Victoria by the public and private sector – and by other organisations who may need to collect health information (eg. researchers, kindergartens, gymnasiums etc.)

84 Information Privacy Act 2000 (Vic) The purposes of this Act are – (a)To establish a regime for the responsible collection and handling of personal information in the Victorian Public Sector; (b)To provide individuals with rights of access to information about them held by organisations

85 Information Privacy Act 2000 (Vic) (c) To provide individuals with the right to require an organisation to correct information about them held by the organisation, including information held by contracted service providers; (d) To provide remedies for interferences with the information privacy of an individual; (d) To provide for the appointment of a Privacy Commissioner.

86 Whistleblowers Protection Act 2001 (Vic)  This Act is designed to protect people (known as whistleblowers) who come forward with a disclosure about improper conduct by public bodies or public sector employees.  Improper conduct means:  Corrupt conduct  A substantial mismanagement of public resources  Conduct involving substantial risk to public health or safety  Conduct involving substantial risk to the environment.

87 Freedom of Information Act 1982 (Vic) Object of Act  To extend as far as possible the right of the community to access to information in the possession of the Government of Victoria and other bodies constituted under the law of Victoria for certain public purposes by  Making available to the public information about the operations of agencies and, in particular, ensuring that rules and practices affecting members of the public in their dealings with agencies are readily available to persons affected by those rules and practices  Creating a general right of access to information in documentary form in the possession of Ministers and agencies limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by agencies.

88 Disability Services Act 1986 (Cth) Principles:- 1. People with disabilities are individuals who have an inherent right to respect for their human worth and dignity. 2. People with disabilities, whatever the origin, nature, type and degree of disability, have the same basic rights as other members of Australian Society. 3. People with disabilities have the same rights as other members of Australian society to realise their individual capacities for physical, social, emotional and intellectual development.

89 Disability Services Act 1986 (Cth) 4. People with disabilities have the same rights as other members of Australian society to services which will support their attaining a reasonable quality of life. 5. People with disabilities have the same rights as other members of Australian society to participate in decisions which affect their lives. 6. People with disabilities receiving services have the same right as other members of Australian society to receive those services in a manner which results in the least restriction of their rights and opportunities. 7. People with disabilities have the same right of pursuit of any grievance in relation to services as have other members of Australian society.

90 Mental Health Act 1986 (Vic)  Mental Health Legislation gives health authorities limited power to detain those people against their will who come within the provision of the legislation. Eg. Involuntary patients

91 The Mental Health Act 1986 (Vic) does not define mental illness but does define conduct which does not constitute mental illness That the person expresses or refused or fails to express a particular political opinion or belief a particular religious opinion or belief a particular philosophy a particular sexual preference or sexual orientation That the person engages in or refuses or fails to engage In a particular political activity In a particular religious activity That the person engages in Sexual promiscuity Immoral conduct Illegal conduct That the person is intellectually disabled That the person takes drugs or alcohol That the person has an antisocial personality

92 Principles for the Protection of Persons with Mental illness (Mental Health Act 1986)  A mentally ill person is to have all the rights of any other person and is to be free from discrimination  The determination that a person has a mental illness shall be made in accordance with internationally accepted principles  A person is to be able to live and work within the community to the extent of her or his capabilities  Treatment is to be based on the principle of the ‘least’ restrictive alternative, to be individualised, discussed with the patient and reviewed regularly  Patients are to be protected from exploitation, abuse and degrading treatment  A person is not to be detained involuntarily unless this is necessary for the safety of the person or others or to prevent serious deterioration in the person’s condition  Where necessary for the above reasons detention may be for a short time pending review.  Detention should involve the least restrictive measures for the least necessary time, and follow legislatively established procedures.

93 Road Safety Act 1986 (Vic)   “ Offences involving alcohol and other drugs” (Part 5 of Act). Blood samples are only required from identified drivers/ riders. Such identification is to be made by a police or ambulance officer.   The onus is on the patient if conscious to provide the sample.   Samples are to be taken also from unconscious patients.   Refusals to provide a sample are to be documented in the hospital record and the police are informed. A “Refusing or Failing to provide a Blood Sample or Negative PBT by Doctor” form is completed and forwarded to the Traffic Alcohol Section.   Special procedures are required to take the blood in accordance with Victoria Police.

94 Crimes (Blood Samples) Act 1989 (Vic)  This Act enables Police to request blood samples from persons suspected, charged, or summonsed for indictable offences, if such samples could confirm or disprove the involvement of those persons in the offence.  Medical practitioners are not compelled to take a blood sample from a person nor to be present when a blood sample is taken.

95 ‘Brodie’s Law’ (Amendment to Crimes Act 1958) In September 2006, a young woman tragically ended her life after enduring a persistent campaign of bullying by three co- workers. None of those responsible for the bullying were charged with a serious criminal offence under the Crimes Act Instead, each offender was convicted and fined under provisions of the Occupational Health and Safety Act From 7 June 2011, new criminal laws now apply to serious bullying, including bullying in the workplace. Where the conduct and consequences of bullying behaviour are extremely serious, new laws allow for prosecution under the Crimes Act 1958 for the offence of stalking. Intervention order legislation has also been amended to complement the strengthened stalking provisions covering serious bullying.

96 Amendments to the Crimes Act 1958 Stalking now includes: Making threats to the victim Using abusive or offensive words to, or in front of, the victim Performing abusive or offensive acts in the presence of the victim Directing abusive or offensive acts towards the victim.

97 Stalking also includes acting in a way that could reasonably be expected to cause physical or mental harm to the victim, including causing the victim to self-harm (including suicide). Mental harm is now also defined as psychological harm or causing a victim to engage in suicidal thoughts. Amendments to the Stalking Intervention Orders Act 2008 and Personal Safety Intervention Orders Act 2010 ensure that the intervention order system reflects the strengthened stalking provisions. Under the Stalking Intervention Orders Act 2008, if a magistrate is satisfied that an applicant is being seriously bullied and that it is likely to continue, the Magistrates’ Court can issue an intervention order. Breach of the intervention order cal also be charged as a separate criminal offence. The maximum penalty for stalking is 10 years imprisonment.

98 Accident Compensation Act 1985 (Vic) The basic principle of workers’ compensation schemes is that they apply regardless of fault. Who is covered o Any employee who suffers injury through accident caused by or in the course of employment; or disease arsing out of or significantly contributed to by employment, may be entitled to apply for workers’ compensation. o The definition of injury generally means physical or mental injury or the aggravation, acceleration, or recurrence of a pre-existing injury arising out of, or suffered in the course of work, and generally includes also the contraction, exacerbation or acceleration of a disease caused by work.

99 Guardianship Power of Attorney Children NFR orders

100 Guardianship  Guardianship and administration are legal processes that permit one person to make decisions for another person;  This may be financial and/ or medical treatment or lifestyle decision.  This process if often necessary for a mentally ill, intellectually disabled or confused elderly person.

101 Power of Attorney Three types  General Power of Attorney  Enduring Power of Attorney – Financial  Enduring Power of Attorney – Medical Treatment  The attorney can refuse treatment for the other person by signing a Refusal of Treatment Certificate – a copy of which is lodged with the Guardianship and Administration Board.

102 Children  It is accepted that a basic principle in law is that a child cannot consent to medical treatment. Generally a person is a minor or “child” at law for most purposes until the age of 18 unless he or she marries.  A child can consent to treatment of which he or she is capable of understanding the nature and consequences (“mature minor”).  This does not cancel a parent’s right to give or withhold consent on behalf of the child.

103 Rights

104 What is a “Right”? A right protects individuals or groups from injustice; it allows individuals to grow to their full potential as a positive and active member of their society; it is a responsibility that each person or group has to others; and it is about respect of oneself and others. A right creates a moral and legal obligation that countries must fulfil.

105 Rights The rights contained in five Commonwealth anti-discrimination laws –  the Racial Discrimination Act 1975,  the Sex Discrimination Act 1984,  the Disability Discrimination Act 1992,  the Age Discrimination Act 2004 and  the Human Rights and Equal Opportunity Commission Act 1986 can be summarised as follows (cited by McIlwraith & Madden, 2006, p ):

106 The rights of all people to:  Privacy; marriage and family; their own language, culture and religion; participation in public affairs; freedom of expression, movement, association and assembly; protection of their inherent right to life; liberty and security of person; freedom from degrading treatment or punishment; and equal treatment with others under the law. The rights of children to:  A name and nationality; opportunities to develop fully in conditions of freedom and dignity; adequate care, affection and security, including prenatal and postnatal care; education; special treatment and care of handicapped; and protection against cruelty and neglect. The rights of mentally retarded or intellectually disadvantaged persons to:  Proper medical care and therapy; economic security; education, training and work and trade union membership; and a qualified guardian and a review of procedures which may deny them their rights. The rights of disabled persons to:  Respect; family and social life; economic security; protection from discriminatory treatment.

107 What are the rights of the child? The Convention on the Rights of Children (http://www.unicef.org/crc/) outlines rights in the following areas: Health, Welfare, Family, Education, Leisure activities, Cultural activities, Special protection, Civil rights and freedomshttp://www.unicef.org/crc/ The declaration sets out 10 principles including:  The child shall enjoy special protection, and shall be given opportunities and facilities, by law and other means, to enable him to develop physically, mentally, morally, spiritually and socially in a normal and health manner…  Be entitled to grow and develop in health…  The child who is physically, mentally or socially handicapped shall be given the special treatment, education and care required…  The child shall be protected against all forms of neglect, cruelty and exploitation. (Savage, 2007, p. 177)

108 Australian Charter of Healthcare Rights (Australian Commission on Safety and Quality in Healthcare at ) The Australian Charter of Healthcare Rights describes the rights of patients and other people using the Australian health system. The Australian Health Ministers adopted the Australian Charter of Healthcare Rights on 22nd July The Charter recognises that people receiving care and people providing care all have important parts to play in achieving healthcare rights. Three principles describe how this Charter applies in the Australian health system. Everyone has the right to be able to access health care and this right is essential for the Charter to be meaningful. The Australian Government commits to international agreements about human rights which recognise everyone’s right to have the highest possible standard of physical and mental health. Australia is a society made up of people with different cultures and ways of life, and the Charter acknowledges and respects these differences.

109 There are seven healthcare ‘rights’ described in the Australian Charter of Healthcare Rights. Access Safety Respect Communication Participation Privacy Comment

110 Australian Charter of Healthcare Rights Access:  access to health care is a fundamental right for everyone. In Australia this right is supported by Medicare which, together with state and territory governments, provides access to free or subsidised treatment by doctors and access to free public hospital services. Not all services, however, are available in all areas, and an individual’s right to health care may be limited by his or her geographic location and the available health services. Access to private healthcare services can require payment. Safety:  Patients, consumers and healthcare providers are entitled to a safe, secure and supportive healthcare environment. Patients and consumers have the right to expect that safe care and treatment will be provided in every encounter with the health system.

111 Australian Charter of Healthcare Rights Respect:  All participants in the healthcare system are entitled to be treated with respect and not be discriminated against in any way.  Patients and consumers have a right to receive care in a manner that is respectful of their culture, beliefs, values and characteristics like age and gender.  Staff and health service managers are entitled to be treated politely and with consideration of their workload. Communication:  To obtain the best possible health outcomes the exchange of information between patients, consumers and staff must be full and open.  This can be facilitated by clear, timely and effective two-way communication. In particular, staff and health services organisations are encouraged to offer and arrange access to services such as interpreters and patient support groups that might enhance the patient’s or consumer’s involvement with the healthcare system.  Patients and consumers have a right to be fully informed about all aspects of their health care including what options are available, where the services would be provided and the costs of the service.

112 Australian Charter of Healthcare Rights Participation:  To obtain good health outcomes, it is important for patients and consumers to participate in decisions and choices about their care and health needs. This provides the basis for informed consent and informed decision making. In some situations, such as emergencies, the opportunity to participate in decision making may be limited. As well as participating in decision making about their own care, patients and consumers also have the right to participate in health service planning. Privacy:  Everyone participating in the healthcare system needs to respect the privacy of other people in the health system. Patients and consumers have a right to expect that their personal health and other information will be collected, used, disclosed and stored in accordance with the relevant laws about privacy, and that this information will remain confidential unless the law allows disclosure or the individuals direct otherwise.

113 Australian Charter of Healthcare Rights Comment:  All participants in the healthcare system benefit from processes that encourage feedback about the services received by patients and consumers and that encourage any concerns to be resolved in an open, fair and timely manner. Patients and consumers have the right to seek to have their concerns resolved by independent arbitrators such as healthcare complaints commissions.

114 Not for resuscitation?

115 NFR orders  The term ‘Not for Resuscitation’ or NFR is used in a variety of ways and directives may be difficult to interpret.  Relevant legislation and case law in regard to NFR in Victoria, is referenced to the Guardianship and Administration Act 1986 and the Medical Treatment Act (Office of Public Advocate, Victoria).  It should be clearly understood that no state or territory will accept active or deliberate acts to cause death.  No state or territory guidelines or legislation allows the withdrawal of palliative care measures aimed at ensuring comfort and alleviating suffering. (Savage, 2007, p. 56)

116 Who can or can’t make a NFR directive? Medical Practitioner:  A medical practitioner may make a clinical decision that resuscitation for a person is futile or is not in their best interests having regard to that person’s medical interests. Competent person  A competent person can make a NFR directive under the Medical Treatment Act 1988 or at common law. If made pursuant to the provisions of the Medical Treatment Act 1988 it can only be made for a current condition and it must comply with the requirements of that Act. However, a NFR directive made at common law can be make for non- current conditions as well as current conditions, but it may be of more limited effect. It may be written or oral, but it must be a clear directive that the person does not want treatment of a particular kind in particular circumstances.

117 Who can or can’t make a NFR directive? NFR directive at common law  When a competent person loses capacity their common law NFR directive has a reduced effect. In such cases a NFR directive has the status of a wish of the person and must be taken into account when the substitute decision-maker is deciding what action to take. Next of kin  The next of kin cannot make a NFR directive for a patient unless they have some status as either: a plenary guardian; or a guardian with appropriate health care powers; or an agent under the Medical Treatment Act The person responsible:  The person responsible cannot make a NFR directive for a patient. A NFR directive is, in effect, a refusal of treatment. Under Part 4A of the Guardianship and Administration Act 1986 the person responsible is empowered to consent to medical and dental treatment but there is no power to refuse treatment.

118 Who can or can’t make a NFR directive? The Guardian:  Depends on the guardian’s powers.  Plenary guardian: has powers under both Acts (mentioned above) and will be able to make a NFR directive.  Limited guardian for health care: would need to check powers as can vary. Agent under the Medical Treatment Act 1988  An agent appointed under this Act is empowered to make a NFR directive so long as certain criteria are met: directive is for a current condition; and the agent understands the condition and treatment of the condition. A parent:  A parent is not able to make a NFR directive for their child except in circumstances where the treatment is (a) futile; or (b) imposes an unjustifiable burden upon the child; or (c) possibly, is not justified in view of the child’s likely quality of life.

119 Legal and Ethical Issues with NFR practices  Guidelines / criteria used to make the decision.  Who is included in the decision making?  Documentation responsibility.  NFR orders should reflect the patient’s wishes and consent.  Directives be properly written in the patient’s history / charts.  Directives be reviewed at regular intervals as circumstances may change.

120 Not for Resuscitation (NFR) Orders NFR orders may be needed: 1.Patient’s rights and interests may by unjustly and illegally violated. 2.Nurses carry an unequal burden regarding obeying an order.

121 NFR Practices Guidelines/ criteria used to make the decision Who is included in the decision making? Documentation NFR orders should reflect the patients consent Be properly written in the patient’s history/ charts Be reviewed at regular intervals

122 Legal Liability and the Nurse

123 Legal Liability in Nursing Four potential legal actions available for patients who may suffer adverse event because of health care experience.  To punish offenders and deter potential offenders.  To compensate injured victims (civil/ private law)  To protect the public against incompetent or grossly deficient moral qualities or technical proficiency (professional misconduct)  To provide information and to review decision- making procedures (administrative law) (Crisp & Tylor, 2001, p. 426)

124 Consent Assault and Battery

125 Consent  As a rule, doctors and other health professionals must obtain a patient’s consent before they undertake any medical procedure.  This applies even where the proposed treatment would clearly benefit the person and a failure to treat may result in harm that could have been avoided.  It is based on a recognition that competent adult patients are entitled to make their own medical decisions even if their decision appears not to be in their ‘best interest’. (Law handbook 2000, p. 438)

126 Consent NB: From a legal perspective, Consent to treatment, in reality, is the defence to actions in assault, battery or false imprisonment, which is why it is so important to health care professionals in their daily work.

127 Assault  Assault most often considered a criminal offence, but for the health care sector may not have the same general application.  The criminal offence of assault would not only consist of the application of force to another person without his or her consent, but would include the actual intent to cause harm to the person assaulted or a very high degree of reckless indifference to the probability of harm occurring to the person assaulted. (Hopefully this intent would be rare in nursing!) (Staunton & Chiarella, 2003, p. 103.)

128 Trespass to the person  In the area of civil law there are three torts which fall under the collective heading of trespass to the person.  These torts, which are divided into assault, battery and false imprisonment, exist to protect people’s personal space. (Staunton & Chiarella, 2003, p. 103.)  Nurses potentially are involved in many procedures that could, in some circumstances, be an interference with the person and offensive to a reasonable sense of honour and dignity  If the patient consents to the touching or the contact, then there is no battery – but the patient must know what touching entails!

129 NB: Negligence and assault and battery are two distinct and separate civil wrong and it is not necessary for a negligent act to precede a battery in order for a civil action alleging battery to succeed.  Unlike, an action alleging negligence, the plaintiff need not have suffered any injury – just that consent was not given, or was not informed (not valid), or there was some breach of contract. »(Staunton & Chiarella, 2003, p. 104.)

130 NB: Remember that, in any allegation of negligence, the patient (plaintiff) must prove all the necessary elements, including damage. Remember that for an action in assault and battery, the patient (plaintiff) does not have to prove damage, but rather an intentional touching and the absence of consent to the treatment given. (Staunton & Chiarella, 2003, p. 105.)

131 Problems with informed consent The concept of informed consent is based on the important assumption that the client is adequately informed. Questions that must be satisfied include:  Does client have the ability to hear or read?  Is language used appropriate for client’s understanding?  Is method used to present the information respectful of age and educational level of client?  Is client’s attention span and memory sufficient enough to allow them to process the information?  Will client clarify the information they cannot fully comprehend?  Does client understand their rights to decide even if their decisions run counter to those of provider?  Does client have ability to communicate their decisions and preferences? (Servellen, 1997, p. 337)

132 What information must be given to enable informed consent  Information about a patients condition  Options for investigation or treatment and their advantages and disadvantages  What is likely to happen if nothing is done  What the doctor recommends  The patient should be warned of risks that are likely to be significant to that person  (Law Handbook 2000, p. 439)

133 When may less information be given?  An emergency.  When patient waives the right to be given information (but needs enough to give consent!).  A doctor has a limited discretion (therapeutic privilege) not to disclose information where he or she has reasonable ground to believe that disclosure of that information may itself harm the patient.  (Law Handbook 2002, p. 439)

134 Method of Consent  Consent may be express (verbal, written) or implied.  The legal reason for a doctor to obtain a patient’s consent to a medical procedure is to provide a defence to a criminal charge of assault and battery or to a civil claim for damages.  In order to be effective, consent must be free and voluntary. It must not be induced; eg by coercion, sedation or misrepresentation, or not understood due to a language barrier.  Consent must also cover the procedure that is undertaken. (Skene, 1998)

135 Common law exceptions to the general need to obtain a patient’s consent to treatment  Incompetent patients  Emergency  Necessity  Best interests of the patient  Legislation  Order of court or other tribunal  (Skene, 1998)

136 Elements of Consent It is important to understand that there must be actual consent to medical procedures and that consent must be ‘real’ in the eyes of the law. Simply having something in writing is not enough. Consent must have at least three elements.  It must be voluntary (consent given under threat or duress, or the effect of stupefying drugs is not valid) and can be withdrawn at any time.  It must be specific (the act carried out must be precisely the act consented to).  It must come from a competent person. In other words the client must be an adult of sound mind. (Wallace)

137 Assault and Battery  Assault is carried out simply by creating in the mind of another the apprehension of unwanted physical contact.  If a health carer threatens a patient with medications or restraint if the patient does not behave this is legally an assault.  Battery occurs when the threat is carried out, that is, the patient or other person is touched against their will.

138 When force is justified It is a defence to a claim of assault and battery that:  Any apparent threat or physical contact was unintended or an accident.  The situation was an emergency and measures sued were to save life or health.  The action taken was in self-defence when faced with imminent danger, by the use of no more force than was necessary to prevent that danger.  The action taken was for the protection of another (including the victim) from danger, again using no more force than reasonably necessary.

139 Elements of a Consent Form Name and full identification of client Name of procedure agreed to Name of place for carrying out the procedure Consents to specified associated treatments Consent to or statement acknowledging possible need for emergency treatment Statement of what information had been given (eg. What the procedure involves, why it is required, why it is recommended in preference to alternatives) List of specific risks and advantages which have been discussed Name of person who will carry out the procedure Agreement to another person carrying out the procedure or any other necessary procedure if circumstances require this

140 Ethical principles of informed consent Informed consent is grounded in the ethical principle of autonomy when the patient speaks for himself or herself.  This means that individuals have the right to information and, on the basis of this input, the right to agree or to refuse to participate in research or to undergo treatment being proposed.  Informed consent also acts to safeguard patients by preventing harm being done to them. This involves the ethical principle of nonmaleficence,or the responsibility to do no harm. (Davis & Aroskar, 1991, p.89)

141 Negligence Duty of Care Vicarious Liability

142 Negligence  In a legal sense describes conduct which falls below the standard required by law.  Care that does not meet accepted standards may be held liable for negligence if harm results (eg. Wrong medication)  There must be a reasonable close causal connection between the defendants conduct and the injury or damage to the plaintiff.

143 Negligence  Once clients have given consent to their care, nurses have an especially recognized legal relationship with a client, which requires proper professional care for that client.  Failure to provide this leaves a nurse open to an action by the aggrieved client in negligence (a civil action).  Wallace, 1991, p. 94

144 Principles of Negligence “ The law says you owe people a duty of care when there is a reasonable foreseeability of harm occurring.”

145 Elements to prove for successful action of Negligence  That the defendant owed the plaintiff a duty of care  That this duty of care was breached by failure to conform to the appropriate standard of care  That the plaintiff suffered injury as a result of the breach of duty  That the damage the plaintiff is complaining about is a reasonably foreseeable consequence of the defendant’s negligent act

146 NB:  In Negligence, it does not matter that the person who caused the injury did not mean to do so, because the purpose of the action is to recover damages for the injury.  It is important to realise that it is not the severity of the injury that determines the question of negligence, but rather the question of whether or not there was a departure from the proper standard of care that caused the patient’s injury.

147 The standard of care expected For nurses, the standard of care to be applied when acting in a professional capacity at work is the objective standard of the ordinary reasonable registered nurse involved in the particular incident under consideration. (Staunton & Whyburn, 1997, p. 23)

148 Duty of Care  A duty of care is an obligation to be careful in your actions so as not to harm others.  The leading case on “duty of care” is the 1932 House of Lords decision Donoghue v Stevenson, the case of the “snail in the ginger beer bottle”.  Out of this case came the “neighbour principle” that has become the test of when a duty of care is owed.

149 Nurse: Duty of Care  Nurses have a duty of care and are responsible for the care they provide.  Nurses are personally accountable for the provision of safe and competent nursing care  Nurses should be aware that undertaking activities that are not within the scope of practice for which they are competent may compromise patient/ client safety

150 Proving duty of care  The first requirement for establishing that liability exists for any action or omission under law, is to show that the defendant (nurse) owed a duty of care to the plaintiff (patient).  It is important to note that the harm foreseen is to be probable, not possible.

151 Student nurses  Generally, the law will give no special consideration to beginners and learners.  The student nurse is just as responsible for reasonable care as is the experienced nurse, provided, of course, that he or she only undertakes to practice according to the level of experience to which he or she belongs.  Wallace, 1991, p. 116

152 Damage  No action can be brought in negligence if no damage can be proved, no matter how careless the actions of the defendant.  If no damage in legal terms has been caused, they can do nothing to obtain compensation for this  One cannot bring an action if one has suffered harm but cannot show that it was caused by another’s negligence.

153 In negligence, the courts recognise three types of damages Physical damage  Obvious physical injury sustained by plaintiff Financial damage  Obvious financial burden or loss that people sustain when they suffer physical damage Psychological damage  The existence of permanent psychological damage which can be medically established is now acknowledged by the courts as a form of damage entitling the plaintiff to compensation

154 Defences to an action in negligence  A general denial and rebuttal of the allegation  Most common form of defence. Would arise where defendant can establish that: No duty of care was owed to plaintiff; or Whatever the defendant did or failed to do was reasonable in all the circumstances; or The plaintiff suffered no damage; or There was no causal relationship between the breach of the duty of care and the damage to the plaintiff; or The damage being complained of was not reasonably foreseeable. Not used in health context – ethically and legally indefensible

155 Defences to an action in negligence  Contributory negligence  Partial defence Establish that, in a negligence action brought by plaintiff, what the plaintiff did or failed to do was also negligent and accordingly contributed to the damage the plaintiff is complaining about  Voluntary assumption of risk  Known as defence of volenti Basis is that no action in negligence can arise if the plaintiff knowingly and willingly consents to run the risk of injury (eg. Sporting activity)

156 Vicarious Liability  Most nurses are employees and are therefore subject to the doctrine of vicarious liability for civil wrong, such as the tort (wrongful act) of negligence.  Even though nurses would not have to provide the compensation personally, however, they would still have to appear in court and give evidence about their conduct.  It is possible that an employer might seek to recover some or all of the compensation it has paid out to the injured party on behalf of the employee nurse, and they have the right to do so at common law. (Rarely done!)

157 Questioning Orders from Superior  Discuss matter with person giving order (explain concerns, clarify reasons for order)  If unresolved inform person that you intend to discuss with supervisor  Inform supervisor, in confidence, and in writing (if have time) of your disagreement with order (and why)  If supervisor does not take action take concern to highest level  (Wallace, 1991., p 118)

158 Myth of the good Samaritan (Staunton & Whyburn, 1997, p ) As far as common-law principles are concerned there is no legal duty to stop and render assistance in any type of emergency, and that includes a MVA. Exceptions are:  There is a legal duty to help where the person requiring assistance is directly related.  There is a legal duty to help when the person requiring assistance is under the control of another person where a duty is involved  Specific legislation sometimes requires that a person must render assistance. (eg. If involved in MVA)

159 Rendering Assistance Assuming that a nurse does decide to stop and render assistance, a duty of care clearly arises as it would in relation to any person who stops. It must be remembered that the law only expects a nurse to act reasonably having regard to the circumstances prevailing.

160 False Imprisonment Restraint

161 Civil Wrong of False Imprisonment Can be a civil wrong and a crime. For nurses it has greater significance as a civil wrong. False imprisonment is defined as:-  The wrongful and intentional application of restraint upon a person, restricting the person’s freedom to move from a particular place or causing the person to be confined to a particular place against his or her will. »Staunton & Whyburn, 1997, p. 124

162 False Imprisonment  Allied to the action in battery  Taken when a person is restrained against their will  Unlawful restraint means the restriction of a person in their movement from any place  A person need not suffer damage nor need even be aware of the restraint

163 Civil Action of False Imprisonment This action is a relevant matter of concern to nurses because it covers two main types of situations:  Refusing to allow a person to leave a premises (detention)  Placing physical, chemical or mental restraints on a person and thereby preventing them from freedom of movement (restraint)

164 Examples of False Imprisonment in Health Care Setting Restriction of patients without their consent Refusal to allow them to leave hospital where they are competent Do not consent There is no legal justification for them to remain there

165 Times when a patient may be restrained against their will Where there is a legal right to restrain  Involuntary patient  Infectious disease  Police powers of arrest and restraint Where the patient is likely to do harm to  Self  Others  Property

166 Action to take if someone wishes to leave facility  If patient wishes to leave and exceptions do not apply, they should be allowed to go.  Attempts should be made to get a signed statement stating they are leaving against advice and of their own free will (most facilities have standard form for this).  Staff need to advise patient of consequences of decision, and get their signed statement acknowledging that they were fully informed and made their decision voluntarily.  If above done, it is unlikely that courts would find staff liable for not giving treatment.

167 The Right to Restrain or Detain patients without their consent The right of a hospital or nursing home to restrain patients against their wishes is of genuine concern to nursing staff who often have to deal with violent, aggressive or demented patients or residents or patients whose particular medical condition makes them physically or mentally temporarily unstable and very threatening. (Staunton & Whyburn, 1997, p. 123.)

168 How false imprisonment is ‘committed’  The ‘wrongful’ aspect of the restraint means that it is not, expressly or impliedly, authorised by the law.  It is possible to commit the civil wrong of false imprisonment without ‘imprisonment’ of a person as the term is commonly understood.  In fact, neither physical contact nor anything resembling a prison is necessary to constitute false imprisonment.  It is sufficient if a person believes he or she is not free to go because of some fear or apprehension that has been created in the person’s mind and which acts as a constraint on the person’s will. »(Staunton & Whyburn, 1997.)

169 Restraint must be Intentional and Complete  Restraint must not only be intended but also be complete. That is – no means of escape.  If a person has means to escape but does not know it this is still false imprisonment, unless it could be shown that a reasonable person would have realised there was a means of escape available.

170 Defences to an action alleging False Imprisonment Reasonable Condition Lawful arrest in relation to criminal offences Specific defences in relation to hospitals and health care generally

171 Detention of Patients  Mental Health Legislation gives health authorities limited power to detain those people against their will who come within the provision of the legislation. Eg. Involuntary patients. (Mental Health Act 1986)  Legislation gives health authorities and welfare authorities power to detain a child in hospital or an appropriate place without parental consent for the purposes of examination and treatment in the case of suspected child abuse. (Children and Young Persons Act 1989)  Specific provision under public health legislation may provide for the detention and treatment of persons with particular diseases in the interests of public health or safety, or obligatory notification by medical practitioners to health authorities of persons with ‘proclaimed’ notifiable diseases. (Commonwealth Quarantine Act 1908)

172 NB: There is no common- law power to detain a person in hospital against that person’s wishes, no matter how ill the person may be!

173 Restraint of Patients There are many occasions (and causes) when patients become violent, aggressive and extremely difficult to properly control and care for. Restraint may be needed to:-  Protect patient from injury (especially child)  Protect other patients from injury  Protect nurses themselves!

174 Nursing obligations regarding the application of Restraint to a patient As far as nursing staff are concerned the application of any restraint to a patient or resident against their wishes must only be done following a careful consideration of the issues involved and consultation with the patients medical practitioner and, where possible, the patient’s relatives. »(Staunton & Whyburn, 1997, p. 128.)

175 Policy regarding application of restraint. Consider:-  The circumstances in which restraint may be considered necessary  The type of restraint that may be applied in emergency before the medical officer can arrive  The need to notify the appropriate medical officer  The need for the patient to be examined by a medical officer to confirm the need for restraint  The written confirmation of the need for restraint to be made in the patients notes by the medical officer  The regular assessment and review of any restraint applied  The patients relatives should be advised and consulted of any any measures to be taken to restrain the patient before they become alarmed or unduly concerned. »(Staunton & Whyburn, 1997, p. 128)

176 Consideration for Policy on Restraint-Practicalities  All health carers of the patient should be consulted, to see if alternative treatment can be adopted to alleviate the patient’s need for restraint.  Family should be consulted, as they may be able to offer assistance and ideas in relation to controlling the patient’s behaviour.  Any restraint should be the least restrictive measure to protect the patient – the aim should be to stop the harm, not the patient. Materials used should be such as to cause the least injury to the patient.  Authorisation from a person with appropriate authority should be required.  Management should be notified of the circumstances of any restraint of a patient.  Family should be notified of any restraint of the patient.  Regular assessment of the patient and the reason for restraint should be carried out.  Full and accurate documentation of the circumstances and type of restraint, as well as the other matters listed, should be made in the nursing notes.

177 Restraint Documentation should include:  Medical and nursing assessment and reason for restraint.  Alternatives to restraint used and the effects.  Type and duration of restraint.  Date of review and discussion with relatives.  Frequency of nursing observations and intervention.  Restraint release times and re-evaluation.  Allocation of staff member responsible for restraint removal in the event of an emergency.

178 Definition of Mental Illness A condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of nay one or more of the following symptoms:-  Delusions  Hallucinations  Serious disorder of thought form  A severe disturbance of mood  Sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in the above.

179 Conduct which does not constitute mental illness That the person expresses or refused or fails to express a particular political opinion or belief a particular religious opinion or belief a particular philosophy A particular sexual preference or sexual orientation That the person engages in or refuses or fails to engage In a particular political activity In a particular religious activity That the person engages in Sexual promiscuity Immoral conduct Illegal conduct That the person is intellectually disabled That the person takes drugs or alcohol That the person has an antisocial personality (Mental Health Act 1986 Vic)

180 Principles for the Protection of Persons with Mental Illness  A mentally ill person is to have all the rights of any other person and is to be free from discrimination  The determination that a person has a mental illness shall be made in accordance with internationally accepted principles  A person is to be able to live and work within the community to the extent of her or his capabilities  Treatment is to be based on the principle of the ‘least’ restrictive alternative, to be individualised, discussed with the patient and reviewed regularly  Patients are to be protected from exploitation, abuse and degrading treatment  A person is not to be detained involuntarily unless this is necessary for the safety of the person or others or to prevent serious deterioration in the person’s condition  Where necessary for the above reasons detention may be for a short time pending review.  Detention should involve the least restrictive measures for the least necessary time, and follow legislatively established procedures.

181 Confidentiality Defamation Privacy

182 Confidentiality and Privacy  Confidentiality refers specifically to restrictions upon private information revealed in confidence when there is an implicit or explicit assumption that the information will not be revealed to others.  Privacy refers to one's ownership of one's body or information about one's self. (Crisp & Taylor, 2001, p. 430)

183 Confidentiality  Because of the unique relationship between Health Carers and Patients information is passed from the patient to the carer who may be extremely sensitive and private.  Patients trust carers not to disclose an that they learn in their daily caring for them..

184 Confidentiality There is no clearly defined lega1Iy enforceable right to privacy or obligation recognised by law, for carers to maintain this privacy

185 Distinction between Privacy and Confidentiality Privacy refers to one's ownership of one's body or information about one's self. Confidentiality refers specifically to restrictions upon private information revealed in confidentiality where there is an explicit or implicit assumption that the information shared will not be disclosed to others~

186 Distinction between Privacy and Confidentiality In relation to privacy, the Privacy Act 1988 requires Commonwealth agencies to conform to a set of Information Privacy Principles when dealing with private information.

187 Distinction between Privacy and Confidentiality  In Victoria the relevant legislation governing information privacy is the Information Privacy Act 2000, the Health Records Act 2001, and the Public Records Act  In relation to confidentiality, there is a range of different common- law and statutory mechanisms for imposing confidentiality obligations of nurses.

188 Distinction between Privacy and Confidentiality At common law, there are expectations in contract (often. the nurse's employment contract would include a duty of confidentiality)· (Crisp and Taylor, 2001; Kerridge, Lowe and McPhee, 1998)

189 What is Confidential Information? Disclosures made to another person with the express condition that they are confidential are the subject of Confidentiality at Law. However the profession gains a great deal of information, which is not covered by this condition.

190 What is Confidential Information? Information may be implied as confidential due to the fact of the carer -client relationship, thus including all information relating to the carer’s professional relationship with the client. Gossip during tea break can be a breach of confidentiality.

191 Confidentiality – What is Confidential Information?  Disclosures made to another person with the express condition that they are confidential are the subject of Confidentiality at Law. Why is the special relationship between carers and clients so important?  Protection of the special trust and nature of the relationship between carer and client  Peace of mind and reputation of the client  The need to ensure that the patient feels able to disclose those facts which may be embarrassing, but are vital for her or his proper care or treatment.

192 Problems associated with modern technology  Shared information via computers in large medical practices and organisations  Involvement of many people outside the health care team in the processing of claims and records etc.  Faxing records or information   Internet (and Facebook, myspace etc.)  Research  Mobile phones and cameras (research Mobile phone laws if any?)  CCTV (research, Surveillance law if any?)

193 At Law - - The duty to maintain confidentiality applies to all personnel who come in contact with the information whether it is current or not.

194 Common Law actions available to a client – the subject of Breach of Confidence Breach of contract  There may be a specific term of agreement for treatment of a client that information received by the professional be the subject of confidence. Negligence  Duty of care considerations Defamation

195 Defamation is the publication of something which wrongfully tends to lower someone in the estimation of others. This may be either:  Slander – which is oral communication  Libel – which is written communication  Defamatory remarks made on radio, television, or from a public platform, for example, a stage, are considered to be Libel because they have a wide audience and there is a potentially permanent recording

196  Defamation is covered by legislation in most states and territories and by Common Law in all.  The sole interest allegedly harmed in a defamation case is the reputation of the person.  Defamation is generally a civil wrong, however in extreme cases eg. Blasphemy, sedition, or obscene libel, as well as defamation causing serious harm is covered by Criminal Law

197 Confidentiality and Nurses The law with regard to confidentiality is based on two principles: Firstly a clients medical record and general information about he or she should not be disclosed. (Consent issues) Secondly, information that is not relevant to the situation (eg. A patients history of abortion when they are being treated following a motor vehicle accident) should not be disclosed.

198 When information may be disclosed:  The information is true (or reasonably believed to be so) and given in good faith  Where it is necessary for the patients treatment  The client agrees to the disclosure  Disclosure is compelled by law: eg. The reporting of an infectious notifiable disease to the appropriate authorities  To a State Authority as part of the requirements of employment or for the public good eg. Reporting child abuse (nurses are mandated to do this by law in Victoria  There is a duty to the public to disclose  The interests of one of the parties involved

199 Guidelines when information is requested about a patient 1. By the patient - this is made available but usually through a medical officer who can explain the documents. Right of the patient to access their medical records is guaranteed under the "Freedom of Information Act" 2. By solicitors, insurance companies etc - the patients permission must be obtained before disclosure

200 Guidelines when information is requested about a patient 3. By other health professionals - as long as the patient consents to care and the information is relevant to that care, it can be passed on as necessary. It should not be given to professionals who are not involved in the care to which the patient has consented

201 Guidelines when information is requested about a patient 4.By relatives - no information other than the patients' general condition and location should be given without the patients consent, unless there are compelling reasons. 5. Parents and guardians have the right to information, which is in the interest of the child.

202 Guidelines when information is requested about a patient 6. By researchers - no information should be given directly to researchers but should go through the ethics committee, which has ensured proper provision for the patient's consent. 7. By the police - information should only be passed on through a responsible health care official that is assured that the information is required in the execution of the police duty and involves a serious crime.

203 Guidelines when information is requested about a patient 8.The information given to police should only include the patient's identity, general condition, and outline of injuries. If a carer is asked by police to give information as to, e.g. what the patient has said or done while in care, the carer is under no legal obligation to answer questions..

204 Guidelines when information is requested about a patient 9. By a court usually by subpoena (order for someone to attend court, or produce documents) and must be complied with. 1 O. By the media the patient's permission must be obtained before information is given. Nurses must be very careful in these circumstances

205 Invasion of Privacy – Law?  All Australian privacy statutes, including the Privacy Act 1988, regulate the way in which personal information can be collected, stored, used and disclosed.  Australians generally can’t cite a right to privacy as a civil right in the eyes of the law, but could take action relating to breach of confidentiality, trespass, negligence, etc.  However, recently (16/6/03), a Qld District Court Senior Judge, Tony Skoien, awarded a plaintiff compensation, not for inappropriate dealing with her personal information, but for invasions of her privacy generally. (Judge Skoien recognised that his judgment was a bold first step in Australia – but considers it to be both logical and desirable.)

206 Health Records Act 2001 (Vic)  establishes standards called Health Privacy Principles (HPPs) for the collection, handling, and disposal of health information in the public and private sectors;  right of access for Victorians for information about them, held in private sector;  Complaints about an interference with health privacy can be made to the Health Services Commissioner Information Privacy Act 2000 (Vic)  Balance the public interest in the free flow of information with the public interest in respecting privacy and protecting personal information in the public sector; and  Promote the responsible and transparent handling of personal information in the public sector and promote awareness of these practices.  Privacy Commissioner appointment

207 HLTEN509A OPEN DISCLOSURE

208 Open Disclosure Open disclosure is about providing an open, consistent approach to communicating with patients following an adverse event. This includes expressing regret for what has happened, keeping the patient informed, and providing feedback on investigations including the steps taken to prevent an event from recurring.[i][i] [i] Australian Commission on Safety and Quality in Healthcare (2003) Open Disclosure: Health Care Professionals Handbook, Commonwealth of Australia.

209 Adverse event An adverse event means an incident in which unintended harm resulted to a person receiving care. Respecting patient autonomy requires health professionals to be honest and allow patients to make informed decisions.

210 Therefore open disclosure for the health professional includes: The provision of an open, consistent approach to communicating with clients following an adverse event; Expressing regret for what has happened, keeping the client informed and providing feedback on investigations; Includes steps taken to prevent an event from happening; Provides information that enables systems of care to be changed or to improve client safety.

211 There may be issues of liability when discussing adverse events. Nurses should seek advice should they be involved in an adverse event incident.

212 Under the open disclosure process, health care professionals may:  acknowledge that an adverse event has occurred;  acknowledge that the patient is unhappy with the outcome;  express regret for what has occurred;  provide known clinical facts and discuss ongoing care (including any side effects to look out for);  indicate that an investigation is being, or will be undertaken to determine what happened and prevent such an adverse event happening again;  agree to provide feedback information from the investigation when available; and  provide contact details of a person or persons within the health care organisation whom the patient can contact to discuss on-going care.

213 Open Disclosure  Open disclosure is the open discussion of incidents that result in harm to a patient while receiving health care. The elements of open disclosure are an expression of regret, a factual explanation of what happened, the potential consequences and the steps being taken to manage the event and prevent recurrence.  The Open Disclosure Standard forms part of wider national initiatives of Commonwealth, State and Territory governments, through the Australian Commission on Safety and Quality in Health Care, to promote a safer and better health care system. Australia’s health care grows and the use of new technologies increases, the provision of health care is becoming more complex and sometimes things go wrong.

214 Open Disclosure Ensuring that communication is open and honest, and that it is immediate is important to improving patient safety. While open disclosure is already occurring in many areas of the health system, this Standard is about facilitating more consistent and effective communication following adverse events. This includes communication between the following:  health care professionals  health care professionals and patients and their support team  health care professionals, health care managers and all staff. Effective communication for patients commences from the beginning of an episode of health care and continues throughout the entire episode.

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220 The Standard also aims to foster commitment from health care organisations to:  provide an environment where patients and their support person receive the information they need to understand what happened  create an environment where patients, their support person, health care professionals and managers all feel supported when things go wrong;  build investigative processes to indentify why adverse events occur; and  bring about any necessary changes in systems of clinical care, based on the lessons learned;

221 In implementing open disclosure, each organisation will operate:-  within its own policies, procedures and processes  within existing or upgraded integrated risk management frameworks and quality improvement processes;  in accordance with applicable Commonwealth and State/ Territory laws and regulatory regimes; and  within particular requirements of insurance and employment contracts. (Ref: national_od_standard.pdf accessed 17/12/08, The Open Disclosure Standard, pp. 1-2) national_od_standard.pdf accessed 17/12/08

222 Professional conduct issues

223 Professional malpractice Professional malpractice is generally considered a form of negligence. Malpractice generally occurs as a result of a health professional’s active violation of a client’s rights or failure to perform certain duties. This can include:  Doing a proper act in a wrongful or injurious manner;  The improper performance of an act that might have been lawfully done – for example, inadvertently disclosing confidential information;  A wrongful act – for example, embezzlement of a client’s funds, or misconduct such as a sexual harassment;  Omission or failure to perform an agreed duty or undertaking. (Freegard [Ed], 2006, p. 102)

224 There are four legal criteria for proving malpractice:  Establishment of duty (the health professional owes a legal duty to the client), which occurs when the health professional agrees to accept someone as a client.  Proving a breach of a standard of care (for example, failing to conform to a legal standard established to prevent unreasonable risk or harm).  A legal causal connection between the conduct of the health professional and the harm suffered by the client. This requires that whatever damage has been claimed to have occurred must be the result of the unethical or incompetent action of the health professional and not the result of other factors not under the professional’s control.  Economically measurable harm to the client that is an actual personal injury that can be measured in economic terms. (Freegard [Ed], 2006, pp )

225 Unprofessional Conduct (NBV, 2008) Definition of Unprofessional Conduct and Professional Misconduct in Victoria The terms “unprofessional conduct” and “professional misconduct” are defined in section 3 of the Health Professions Registration Act The definition of “unprofessional conduct” includes: a) Conduct of a health practitioner occurring in connection with the practice of the practitioner’s health profession that is of a lesser standard than a member of the public or health practitioner’s peers are entitled to expect of a reasonably competent health practitioner of that kind. b) Professional performance which is of a lesser standard than that which the registered health practitioner’s peers might reasonably expect of a registered health practitioner. (Health Professions Registration Act 2005 (Vic)

226 The definition of “professional misconduct” is: a) Unprofessional conduct of a health practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and b) Conduct that violates or falls short of, to a substantial degree, the standard of professional conduct observed by members of the profession of good repute or competency; and c) conduct of a health practitioner, whether occurring in connection with the practice of the health practitioner's health profession or occurring otherwise than in connection with the practice of a health profession, that would, if established, justify a finding that the practitioner is not of good character or is otherwise not a fit and proper person to engage in the practice of that health profession. A breach of the Professional Boundaries Guidelines may constitute “unprofessional conduct” or “professional misconduct”.

227 Principles of safe practice  The priority of registered nurses must be to meet the therapeutic needs of their patients.  In the therapeutic relationship registered nurses need to be aware of their own needs, values and attitudes.  Registered nurses are responsible for ensuring that the nursing care that they provide is never compromised by putting their own needs ahead of those of their patients.  Nursing care must never be withheld from a patient as a punishment. Any intent to cause pain or suffering as punishment based on punitive judgement is unacceptable.  Coercing patient compliance may be an abuse of the power imbalance.  Registered nurses need to be aware that individual sensitivities, for example cultural differences, may surround some areas of the body when it comes to therapeutic touch, and that these sensitivities are relevant to registered nurses and patients. (NBV: PC – 24 October 2007 Guidelines: Professional Boundaries)

228 Indictable offences In 2006, the Board introduced a new question to the annual nurse registration renewal form, asking whether the nurse had been convicted of an indictable offence. This question now appears annually on the renewal application. Under the Health Professions Registration Act 2005, nurses must also notify the Board within 30 days if they have been committed for trial, received a conviction or finding of guilt in respect of an indictable offence. If a nurse has been found guilty of an indictable offence, they need to provide an explanation to the Board. The Board will consider the explanation of the circumstances and may ask for additional information, such as a current police check. The Board may initiate a professional conduct investigation into the matter. (http://www.nbv.org.au/web/guest/pc-indictable-offences)http://www.nbv.org.au/web/guest/pc-indictable-offences

229 Nursing Law & Ethics References  Dix A, Errington M, Nicholson K, Powe R, 1996, Law for the Medical Profession, Butterworth Heineman, Australia.  Kerridge I, Lowe M, McPhee J, 1998, Ethics and Law for the Health Professions, Social Science Press, Sydney.  McPhee C, (Ed), The Law Book 2000, Fitzroy Legal Service, Victoria.  Plueckhahn V, Breen K, Cordner S (Eds), 1994, Law and Ethics in Medicine for Doctors in Victoria.  Skene L, 1998, Law & Medical Practice. Rights, Duties, Claims and Defences, Butterworths, Sydney.  Staunton P & Whyburn B. 1997, Nursing and the Law, 4 th Edition, W B Saunders, Sydney.  Staunton P & Chiarella M, 2003, Nursing and the Law, 5 th Edition, Churchill Livingstone, Sydney.  Wallace M, 1991, Health Care and the Law. A Guide for Nurses, The Law Book Company Limited, Sydney.


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