Legal And Professional Issues In Nursing In Australia

Common law

Discuss about the Legal and Professional issues in Nursing in Australia.

There are two sources of law that are applicable in Australia- Common Law and Statute Law. Common law is also known as Judge made laws or precedents. The development of common law can be traced back to hundred years during which the values and the practice of the courts and the legal framework have identified certain principles to be fundamental in order to maintain equality before the court of law. The doctrine of precedent states that the judges are bound to follow the previous judgements while deciding any similar cases (MacCormick, Summers & Goodhart, 2016).

However, if the facts of the previous case are not similar to the facts of the present case, then the judges may compare the circumstances of both the cases and then either develop a new principle or apply a common principle for deciding the present case. Precedents may be set by superior courts only and all the subordinate courts are bound by the judge-made laws. Therefore, the all the rules and the principles recognised in the court procedures and the judgements passed by the courts may collectively termed as common law.

Statute law or statutory laws are laws that are passed by the Parliament. In Australia, both the Federal Parliament and the State Parliament have the power to legislate legislations within their jurisdiction. The statutory laws passed by the Federal Parliament are applicable to the entire nation (Zander, 2015). Federal laws include legislations related to immigration, defence, national healthy (Medicare), etc. generally, the judges cannot overrule an act or law as they are competent to do in case of the judge made laws.

The legislation process in the Federal Parliament includes the following three stages. Firstly, an issue is brought before the Parliament and they draft a Bill on that issue which is considered as either a proposal to create a new law or amend the prevailing law. Secondly, the member who wishes to propose the new law introduces the Bill to the House and explains the purpose and objective of the proposed Bill and after a detailed discussion about the Bill regarding its advantages and disadvantages, if the members of the House agree to the proposition of the new Bill, they cast their vote in favour of the Bill and the Bill proceeds to the third reading. Finally, the House is asked to vote in favour of the Bill and once the Bill is passed by the House where it was introduced, it is sent to the Senate for further consideration. Some of the Parliamentary Acts include Aged Care Act, Disability Discrimination Act, Freedom of Information Act, Privacy Act, Health Insurance Act, etc.

Statute law

In Australia, all the licensed private health care facilities are under legal obligation to maintain a written incident management system which sets out the procedures to be followed in case of an adverse event or incident. In case of an adverse event, it must be informed to the Regulation and the Compliance Unit. An adverse incident refers to an inadvertent injury caused to a patient or any medical complication caused by the healthcare management of the patient resulting in death or disability of the patient (Daly, Speedy & Jackson, 2014). The health care providers must inform about all incidents that have been recognised by using the Incident Information Management System (IIMS); they are required to participate in the investigation of incidents as per requirement. They are also required to take active part in the implementation of the recommendations that arises from the investigation of incidents.

It is a medical order to hold back cardiopulmonary resuscitation (CPR) procedures and techniques. This form of medical order notifies the health care team that in case a patient suffers from cardiac arrest cardiopulmonary resuscitation shall not be conducted. The patient shall be provided with comfort measures during their dying process. This medical order is issued only after communicating and informing the patient or family or agent or guardianship, senior medical and nursing staff. Doctors play a significant role in assessing the validity of such order and the capacity of the patients to take such decisions or if the patients are unable to take any decisions who is authorised to make such decisions on behalf of such patients. The medical profession must possess a clear understanding of this area of law (Chang & Daly, 2015). 

The Health Service Commissioner is under statutory obligation to take into consideration of the complaints relating to health services provisions and provisions of services for aged people and complaints relating to violation of the Health Records (Privacy and Access) Act 1997. The Commissioner plays a significant role in promoting improvements in the health service provisions and in the health services provided to the aged people. The Commissioner must spread awareness regarding the right and responsibilities of the healthcare providers and the users of the health services including the health care services for the aged people.

The healthcare providers must provide valid prescriptions to the patients after checking them properly. Before the health care professionals issue prescription it is mandatory that the patients are properly examined and the prescription shall be made as per the medical requirement of the patient. A valid prescription must include the name, address, phone number and signature of the prescriber, the date on which it was prescribed; the name and address of the patient; the date of birth of the patient and the name and quantity of the drugs to be provided to the patient. 

Incident Report

When a person is treated without obtaining his or her consent, the person has the right to claim compensation under the civil law due to the infringement of his or her right to bodily integrity or restraining him unlawfully without providing any legal justification. The person has the right to institute criminal law prosecution against such trespass. There are three types of torts of trespass to a person, namely, tort of assault, tort of battery and false imprisonment. Assault refers to the instances where the plaintiff is under the apprehension of immediate harm that may be inflicted upon him or her (Schneider & Whitehead, 2013). 

Battery deals with actual harm that is inflicted upon the person that, is, an unlawful physical contact with the plaintiff.  False imprisonment refers to an unlawful restraint of a person, that is, deprivation of the freedom of the patient. The Court shall consider the facts and circumstances of the plaintiff and award the person with compensation for the damage suffered and the injuries sustained by such person due to the commission of battery, assault and false imprisonment. The court may also award aggravated damages, exemplary damages and other nominal damages to the injured person.

Bioethics may be defined as a study and investigation of ways in which science and medicine have touched lives and health and lives of the community and the significance it has upon the environment (Johnstone, 2015). Bioethics is concerned with question related to basic human values such as right to health, life. It also determines what is right or wrong with the developments in healthcare institutions, new technology, healthcare professionals and the responsibility of the society towards health and life of the members. Bioethics is a branch of ‘applied ethics’ as it requires the expertise of people engaged in various disciplines such as theology, philosophy, life science, medicine, social science and nursing, etc. It deals with ethical questions related to hospitals, families, governments, etc. the ethical principles of bioethics deals with fundamental values that acts as guidelines for respecting the dignity of the individuals, maintaining bodily integrity of individuals and making reasonable decisions for the well-being of the society and environment.

The bioethics often refers to the four fundamental principles of health care ethics while evaluating the advantages and disadvantages of the medical procedures. The health care providers are required to practice medicine by following and respecting the four essential principles of ethics- autonomy, justice, beneficence and non- maleficense (MacFie & McNaught, 2015).

Not for Resuscitation Form (NFR)

The principle of autonomy requires the health care professionals to respect the rights of the rights of the patients to think and take decisions for themselves for undergoing any medical treatment procedures. The patients must be allowed to take decisions regarding the treatment procedures without any coercion. The health care providers must provide accurate information to the patients regarding the treatment procedures and if the health care providers think it necessary to undergo any treatment the patient must be fully informed about the treatment and consent of the patient must be obtained before undergoing such treatment (Small et al., 2016).

The principle of Non maleficense requires that healthcare providers to ensure that the treatment procedure does not cause any harm to the patient or to the society. The health care professionals must ensure the safety and welfare of the patients and that any treatment procedure undertaken by the patient causes no harm to the patient.

This principle requires the health care professionals to ensure that any treatment procedure that is undertaken by the patient is done for the welfare and benefit of the patient. The treatment procedure must no cause any damage or harm to the patient. The patient must be fully informed about the treatment procedure undertaken by him or her and the healthcare providers must obtain the consent of the patient before commencing with the medical procedure.

The nurses and the other healthcare professionals treat the personal information of the patients as confidential and private information. The nurses are under ethical obligation to safeguard the privacy of the patients and exercise reasonable care towards the patients. The health care providers restrict the use of the private and confidential information between the patient and the nurses (Paquette & Ross, 2014). However, the nurses are entitled to disclose the information if the nurse is of the opinion that it is necessary to disclose such information for the benefit of the patient then the nurse may make such disclosure after informing the patient about the necessity of such disclosure. Nurses may make disclosure if they consider that if such disclosure is not made it may cause harm to the patient or any other individual.

The determination of the fact whether a death is a reportable death or reviewable death, can be made from the Coroners Act 2008. A death is reportable death if it had occurred accidently or violently or unexpectedly and the person died directly or indirectly from such unexpected accident or injury.  When a person dies, the death of the patient must be reported to the Coroner. In case a health care professional believes that the death is reviewable or reportable, he or she must immediately inform the same to the coroner in case such death has not been reported to the Coroner. The nurse must follow the instructions given by the Coroner and verify the death before transferring or admitting the same before the court.

Health Services Commissioner

A coroner is a person who confirms and certifies the death of a person within a competent jurisdiction.  A coroner may either conduct or order the health care providers to conduct and investigate the reason or cause of the death of a person. He may order the health care providers to investigate and find out the identity of the person who died within the jurisdiction of the coroner (Studdert et al., 2016).

Voluntary or involuntary mental health admission

A voluntary mental patient is a patient if such patient has been admitted to the hospital voluntarily to receive treatment for the mental illness. An involuntary patient is a patient who is admitted to a hospital for treatment without obtaining informed consent from such patient. The treatments for voluntary patients include communication therapy, medications, etc. The treatment for involuntary patients includes an inpatient treatment order and a community treatment order.

The Common law requires the enrolled and registered nurses and other healthcare professionals to promote competent and safe care medicinal practice ensuring the safety of the patients (Birks et al., 2016). In order to conduct a competent and safe practice the qualified and registered medical practitioners must administer medicines to those who are incapable to administer medicines on their own or are incapable to take the responsibility of taking the medicines properly and timely. According to the Nursing and Midwifery Board of Australia, the registered nurses shall supervise the enrolled nurses on administering the medicines to the mentioned people.

The doctrine of necessity has developed from the judge made laws. It states that when a person is in a dilemma to obey the laws and permit some harm to occur, the person is allowed to do so and they shall be excused from doing so as well. In the field of medicine, a patient must give consent to any treatment that is proposed by the doctor. The exception to this rule is that if a person is in imminent danger and such a situation requires the health care providers to undergo a treatment to save the life of the patient, the medical practitioners are allowed to do so without the consent of the patient (Gray, Rowe & Barnes, 2016). The emergency doctrine states that if the patient is capable of giving consent to the treatment he may do so or else under such emergency situation treatment may be undertaken by the healthcare providers without obtaining the consent of the patient.

Valid Prescription

Criminal law deals with offences committed against the property or the body of a person. The Majority of the criminal law in Victoria is governed by the Crimes Act 1958 however, certain criminal conduct are dealt with by the Common law. Criminal offences include summary offenses and Indictable offenses. Indictable offenses are serious offenses and summary offenses are minor offenses (Scanlon et al., 2015).  For Nurses, commission of indictable offences may affect the professional registration of the nurses and if a nurse has been charged under an indictable offence, the same must be informed to APHRA.

Abortion is subject to criminal law in every Australian states and territories except in the capital territory. Abortion is considered as a crime in Queensland and NSW but is considered to be legal if the doctor believes that the physical and mental health of the mother is in danger. In other states and territories it is considered legal if the doctors thinks it is necessary to save the mother.

The Health Practitioner Regulation national Law requires that a registered health practitioner cannot practice unless there is professional indemnity insurance for them. The legal principle of vicarious liability has been restored in the Employee liability Act where section 3 provides that an employee shall not be liable for any wrong such as negligence, if their employer is held liable for the wrong as well. The employers shall provide various insurances including the liability insurance in case legal action is instituted against them for faulty practices (Blais, 2015). However, this provision is not applicable in all the states and territories.

The requisites to refuse medical treatment depend on the capability of the patients to make their decisions and to consent to the medical treatment procedures. The agent or guardian of the patient may refuse the medical treatment by executing a refusal of treatment certificate on behalf of the patient.

Medical enduring power of attorney

It is a legal document where the patient appoints another person known as the medical agent who is authorised with the power to take medical decisions on behalf of the patient (Tilse et al., 2014). The patient must be above the age of 18 years and have the legal capacity to appoint such medical enduring power of attorney and only a medical agent can refuse thetreatment on behalf of the patient.

The Victorian Civil and Administrative Tribunal (VCAT) is established under the VCAT Act 1998. It deals with matters related to discrimination, administration and guardianship, health and information privacy, etc. It aims at providing cost-effective, efficient, independent resolution for the disputes arising between the claimants.

Trespass

The record of the patients is legal documents which ensure that the needs of the patients are communicated to the healthcare providers. The documentation enables to determine the payment to be made by the patient (Holloway & Galvin, 2016). It also acts as safeguard for the healthcare providers as it helps them from getting involved into any legal suits as the documents acts as evidences that the patient has been taken care of. A nurse must maintain high quality and accurate medical record of every individual patient as it would enable to ascertain whether the legal standards have been complied with. 

The healthcare providers often have to carry out actions which curtail the freedom of the patients especially the aged patients. This is usually conducted for the welfare of the patient and the patient must be provided with detailed and reasonable justification for such physical restraint.

Schedule 4 Drugs must be stored in a secure facility such as room, refrigerator, drawer etc to which other persons or any unauthorised persons cannot have access to such secured places (Özturk et al., 2014). In the absence of a veterinarian, the secured place must be properly locked and no non-veterinarian shall have access to such secured place or such drugs.

The Northern Territory of Australia became the first legislature to pass laws legalising voluntary euthanasia (Murphy, 2016). When four patients were suffering from cancer and were dying, the doctors helped them to receive a peaceful death. However, the Rights of the Terminally ill Act 1995 was amended which required the patients to seek approval of the medical practitioners who would help them to die; an independent doctor having knowledge about the terminal illness of the patient.

When the nurses commit the offence of murder by killing two or more patients it is called homicide.  Researches and reports have revealed that nurses tend to murder patients who are vulnerable, that is, old, young, disabled, sick etc. the patients usually trusts the nurses and are usually dependent on them. The nurses on the other hand, take advantage of their helplessness and dependence.

The nurses and the other health care providers are under ethical obligation to exercise additional care towards the patients who are suffering from disability. These patients require extra care and must be dealt with patience. They are usually completely dependent on the health care providers and therefore, the nurses and the health care providers must respect their dignity and not take advantage of their condition and encourage them to adopt a positive approach in their life.

Bioethics

The Guardianship and Administration Act 1990 states that patients who are incapable of making decisions may need additional assistance and support. The State Administrative Tribunal may appoint a person or guardian who would take medical decisions for the patients. The Tribunal can appoint Public advocate as guardian of last resort only when there is no one appropriate for the position and willing to become the guardian of the patient.

The procedural law lays down the rules according to which a court determines the administrative proceedings of the lawsuits. Substantive laws are laws that regulates the rights and responsibilities in criminal, civil lawsuits and such laws exist through precedents in Common law (Edgar, 2016).

Patient’s access to medical records

The medical records must contain medical history of the patients and must be kept as confidential information (Mold et al., 2015).  The doctors or healthcare providers own the medical records but the patients may have access to such records which is supported by the Commonwealth Privacy Legislation (Pearce & Bainbridge, 2014).

The nurses must ensure that they have exercised their duty of care towards the patients; that they did not commit any breach of their duty of care and that no harm was caused to the patient as a result of their breach of duty of care (Arnold, 2016).  If any harm is foreseeable then the nurse must ensure that necessary measures are taken to avoid such harm and safeguard the patient (Foley & Christensen, 2016). The nurses are responsible for the welfare of the patients and therefore they must perform their responsibilities therefore, the nurses must take reasonable steps to ensure safety and welfare of the patients.

References

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Foley, M., & Christensen, M. (2016). Negligence and the Duty of Care: A Case Study Discussion. Singapore Nursing Journal, 43(1).

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Griffith, R. (2015). Understanding the Code: scope of the duty of confidentiality. British journal of community nursing, 20(6).

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Mold, F., de Lusignan, S., Sheikh, A., Majeed, A., Wyatt, J. C., Quinn, T., … & Kataria, N. (2015). Patients’ online access to their electronic health records and linked online services: a systematic review in primary care. Br J Gen Pract, 65(632), e141-e151.

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