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EPPD HANDBOOK

By Ian Kemp

MBBS II, 2005

University of QueenslandA compilation of issues from the Ethics, Personal & Professional Development Domain

EPPD HANDBOOK

Compiled by Ian M. D. Kemp, LLB(Hons), BSc(Hons)

2004-5 pursuant to the Berne Convention

Disclaimer:

This booklet has been compiled for study purposes only, and as such contains my personal approach and views on many of the issues mentioned within. Given its purpose and the time constraints surrounding its creation, it is neither comprehensive nor have I checked it for accuracy. Societal ethics, professional codes of conduct, the common law and international covenants are all subject to change, and are being constantly revised, updated and amended. So dont expect this booklet to be flawless. The information contained herein should not be taken as professional advice of any kind. If you are in a situation where you need a to know your rights and obligations under the law, then seek advice from a proper professional source dont rely on the information contained herein. Above all else, use common sense when reading and using this document. It has been written by a student for other students to use as a study guide for the MBBS course, nothing more than that is intended.

TABLE OF CONTENTS

3TABLE OF CONTENTS

71. INTRODUCTION TO THE LAW

7Overview of the Australian Legal System

8Hierarchy of Courts in Australia

8Dealing with Legal and Ethical Problems

9Civil Proceedings

9Criminal Proceedings

10Tortious Liability

112. MEDICAL ETHICS & BIOETHICS

11The Four Principles of Medical Ethics

11Autonomy

12Non-Maleficence

12Beneficence

13Justice

143. NEGLIGENCE

14Elements of Negligence

14Duty of Care

16Standard of Care

17Causation/Remoteness of Damage

18The Medical Indemnity Crisis

194. DUTY TO RESCUE

19General Principle

19Queensland Legislation

20Lowns v Woods

215. AUTONOMY & CONSENT

21The Concept of Autonomy

21The Test for Valid Consent

21Competence

22Reasonably Informed

23Voluntariness

246. REFUSAL OF TREATMENT

24Capacity to Refuse Treatment

25Ethical Dilemmas

26Overriding Treatment Refusals/Treating Without Consent

277. CONSENT BY MINORS

27Who is a Child?

27Parental Rights v Child Rights

27Consent to Treatment by Minors

29Legal Position in Other States

29Gaining Consent to do Medical Procedures on Minors

29Law Reform Commission Recommendations

308. RIGHTS OF THE CHILD

30Recognized Rights of Children

30Developmental Characteristics of Mature Minors

30Duties of Parents/Carers Under the Criminal Law

31International Human Rights Conventions

329. SUBSTITUTE DECISION MAKING

32Making Decisions for an Incompetent Patient

32Who can make decisions

33Advance Health Directives

3510. MENTAL INCAPACITY, SELF-HARM & FORCIBLE DETENTION

35Consent for the Mentally Impaired, Retarded, and Incapable

35Involuntary Assessment & Treatment under the Mental Health Act

38Effect of Advance Health Directives

3911. CONFIDENTIALITY & DISCLOSURE

39The Duty of Confidence

40Disclosure of Patient Information

41Medical Records

41When a patient specifically asks that information not be recorded

4312. NOTIFICATION

43Principles of Notification

43List of Notifiable Conditions

44Mandatory Notification of Diseases

45Which Diseases are Notifiable

4813. PROFESSIONAL SELF-REGULATION

48Professional Standards

49The Medical Board of Queensland

50The Health Practitioners Tribunal

50The Professional Conduct Review Panel

51Similarities between the School of Medicine & the Medical Board

5214. PROFESSIONAL OBLIGATIONS & RESPONSIBILITIES

52Definitions of Medical Ethics and Medical Etiquette

52Second Opinions

53Referrals from General Practitioners to Specialists

54Scope of the Student / Doctor Relationship

54Professional Boundaries & Unprofessional Conduct

55Sexual Relationships b/w Doctor and Patient

5715. OBLIGATIONS TOWARDS IMPAIRED COLLEAGUES

57Common Causes of Impairment

57Response to Impairment

58Impaired Practitioner Programs

59Ethical Obligations for Doctors

6016. DOCTORS & THE PHARMACEUTICAL INDUSTRY

60Relationship b/w Doctors & Pharmaceutical Industry

60Pharmaceutical Sponsored Travel

61Support for Meetings & Other Educational Activities

61Gifts & Samples

6217. COMMERCIALISATION OF MEDICINE & ADVERTISING

62Deregulating the Medical Profession

62Advertising Rules

6418. MEDICAL CERTIFICATES

64Requirement of Veracity in the Issuing of Certificates

64Formalities & Penalties

6619. CONCEPTUALISATIONS OF HEALTH AND ILLNESS

66Essential and Nominalist Conceptions of Disease

66Statistical, Functional and Prognostic Versions of Abnormality

66Evaluative and Descriptive Models of Disease and Illness

6820. CHRONIC ILLNESS & ALTERNATIVE THERAPIES

68Use of Alternative Therapies

68Complementary Modalities within Allopathic Medical Practice

7021. IMPLICATIONS OF AGEING & FATAL ILLNESS

70Reactions to separation and loss

71Fears of and resistance to displacement

71Autonomy, Independence and Substituted Decision Making

71Provision of institutional care for the elderly

7322. DELIVERING BAD NEWS

73Essentials

7423. ETHICS OF SCREENING TESTS

74Principles of Screening

74Components of an Effective Screening Program

75Successful & Failed Screening Programs

75Genetic Screening

7724. ETHICS OF IMMUNISATION

77Consent & Rights

7825. TRANSPLANTATION

78Tissue Donation by Minors

79Donation to Siblings The Parental Role

8026. ABORTION

80What Kind of Question is the Abortion Question?

80Perspectives on the morality of abortion

82Moral Status of the Foetus

82The Law on Abortion

82Abortion Law in Queensland

85Other States With Abortion Legislation

86Professional Obligations Concerning Provision of Abortion

8727. DISCRIMINATION

87Principles of Anti-Discrimination

8928. WORKCOVER

89What is a Workers Compensation Scheme?

89Purpose of Queenslands Workers Compensation Scheme

90Who Manages Workers Compensation?

91The Scope of Workers Compensation

92The Claims Process (Lodging a Claim with WorkCover Queensland)

93The Role of Doctors

9429. REHABILITATION & ALLIED HEALTH

94Role of Allied Health Professionals

9630. HUMAN RESEARCH ETHICS COMMITTEES

96Obligations of HRECs

97LIST OF LEGISLATION & WEBLINKS

97Useful Links

97Statutes

97Regulations

98INDEX

98Faculty LOs for MBBS I

101Resource Descriptions - EPPD Lectures for MBBS I

1. INTRODUCTION TO THE LAW

Overview of the Australian Legal System

Australia inherited its legal system from Britain. This is known as the Common Law or Adversarial system. The key aspect of this system is that the two sides to any dispute present their strongest arguments to a judge, who then makes a decision. The rationale is that the right decision is most likely to be found via robust argument. If each side is able to present their arguments then all relevant considerations are more likely to be raised. This legal system operates in most countries with British heritage, including Canada, New Zealand, the USA etc. In comparison, the Civil Law or Inquisitorial legal system is utilized in many countries on the European mainland. Under this system the judge plays an active role, with the power to make inquiries into the circumstances surrounding a dispute. Most laws under this legal system are codified. There are several other legal systems in play around the world, but these are the two most relevant to us.

The common law system has two primary sources of law the Judiciary and the Legislature. The judiciary makes decisions in individual cases, known as case law. Decisions of a superior court are binding on lower courts (the principle of precedent) so long as the material facts are the same. The legislature lays down statute law by enacting legislation (Acts of Parliament) and reviewing subordinate legislation (Regulations). Statute law overrides case law.

Australia is a Federation, which means that there is a demarcation of power between the States and the Commonwealth. The scope of Commonwealth legislative power is limited by the Constitution, which contains certain heads of power. The Commonwealth can only pass laws that are related to the subject matter contained within these heads of power. The States have the power to legislate on any matter at all (plenipotentiary power), but Commonwealth legislation overrides State legislation. Neither the states nor commonwealth can pass legislation that is contrary to the constitution.

International Law is a separate area, and a rapidly growing one, with its own rules and obligations. Treaties may be made between two or more nations (bilateral or multilateral), and treaties with universal application are frequently known as covenants. The rules for setting up a treaty are contained within the Vienna Convention. From the point of view of Australian law, the executive branch of government (in this case the Prime Minister, Foreign Minister or an Ambassador given plenipotentiary powers) signs treaties, but only the legislature and judiciary can make law. Thus signing an international treaty does not make it part of Australian law. The Parliament must pass legislation to implement Australias obligations under any given treaty. This is entirely at the discretion of the Parliament, which is one of the reasons why the Prime Minister must retain the confidence of the parliament.

The ability to enforce rights under treaties is highly circumscribed. Treaties themselves often set out dispute resolution procedures for problems that may arise. If a procedure is not set out in a treaty then countries can seek redress at the International Court of Justice (ICJ). Decisions from the ICJ however are not binding. In practise, if an individual sues to enforce a right under a treaty then they will actually sue under the enabling legislation, which is part of Australian Law and is thus enforceable. An individual can also seek to enforce obligations under international human rights conventions, but such decisions are not binding on the Government. In nation v nation disputes, enforcement is usually a matter of both sides agreeing to meet their obligations, but they can always refuse to do so this is where trade wars and conventional wars can arise.

Some useful distinctions

common law is often used as a synonym for case law (cf the common law system)

civil law is the body of law governing interactions between private individuals (cf the civil law system). The alternative body of law is criminal law, which involves the State prosecuting individuals.

Hierarchy of Courts in Australia

The hierarchy of courts in Australia is as follows*:

Privy Council (PC)

(pre 1986 only, legislated out by the Australia Act)

(High Court of Australia (HCA)

(7 judges, final court of appeal on all matters)

(

(

(Federal Court of Appeal (FCA) Court of Appeal (CA)

(3 judges, federal matters) (3 judges, state matters)

(

(

(Federal Court(FC)

Supreme Court (SCt)

Family Court (FC)

(1 judge, federal matters)(1 judge, state matters civil/crim)(1 judge, federal matters)

( District Court (DCt)

(1 judge, civil matters