The Law

1. The Law Topic 02 Law Development of Australian Law Consent Restraint Documentation Incident reports Coroner Negligence Defamation Bailment Wrongful Disclosure Court system

2. Controlling Unpredictability of health Ethics

3. Introduction Accountability and responsibility Code of conduct

4. Accountability and Responsibility

5. Review Accountability and Responsibility Accountability: the state of being answerable for one’s decisions and actions. It cannot be delegated. Responsibility: the obligation that an individual assumes when undertaking to carry out planned/ delegated functions. The individual who authorizes the delegated function retains accountability

6. In law and ethics what does it mean? • A nurse must practice in a safe and competent manner (Code of Conduct) • A nurse’s primary responsibility is to provide safe and appropriate nursing services. Any circumstances which may compromise professional standards, or any observation of questionable or unethical practice, will be made to an appropriate person or authority.

7. Code of Conduct

8. Code of Conduct • If the concern is not resolved and continues to compromise safe and appropriate care, a nurse must intervene to safeguard the individual and notify the appropriate authority.

9. Code of Conduct • A nurse must practice in accordance with laws relevant to the nurse’s area of practice • They must ensure they do not engage in practices prohibited by such laws or delegate to others activities prohibited by those laws

10. Code of Conduct • A nurse must respect the dignity, culture, values and beliefs of an individual and any significant other person. • In making professional judgments in relation to individual’s interests and rights, a nurse must not breach the human rights of any individual.

11. Code of Conduct • A nurse must treat personal information obtained in a professional capacity as confidential • A nurse has a moral duty and a legal obligation to protect the privacy of an individual by restricting information obtained in a professional capacity to appropriate personnel settings and to professional purposes

12. c. Description of Law

13. A tort is usually described as a civil wrong This law, by awarding damages, compensates individuals whose personal rights, freedoms or interests have been infringed by others. The torts most relevant to nursing are: Assault False imprisonment Negligence Negligent advice Defamation Bailment The law of Torts

14. Civil Law • The person who initiates the action is called the plaintiff and the person they are accusing is the defendant • The plaintiff has the responsibility of proving the wrong action. • They only have to prove their case on the balance of probability. Therefore the standard of proof is lower than in criminal cases

15. Rights of patients • Given by the law , ethics and professional standards

16. 1. Development Australian of the Law

17. Rule of Law • Basic principal in the Australian ( any) legal system • People must obey the law and be ruled by it. • No person is beyond the law • ‘govern by the law and not by men’

18. Where does law come from • 2 main sources of law in Australia are the common law and legislation • Common law consists of the principles developed by judges in cases that come before them • Legislation is the law passed by the Parliament, or some other bodies under delegation.

19. Federal and State Legislation • Each State through their individual constitutions may pass laws for the peace order or good government of the State. • Federal parliament may pass legislation as specifically determined by the Commonwealth Constitution

20. Parliamentary law • One of the functions of a parliament is to enact legislation, known as Acts or Statutes, they are designed to regulate certain aspects of society • An Act of parliament is considered to the primary source of the law. • This means that the law contained in legislation has priority over common law.

21. Procedure • An item of legislation will be known as a ‘Bill’ prior to it being finally passed in law when it then becomes and Act. • There are many Acts of parliament at both State and Federal levels which regulate and control the practice of health professionals and the provisions of health services

22. Acts • At the State level there are Acts which control the registration and regulation of health professionals, occupational health and safety and for providing avenues for complaints by health care consumers

23. Acts • At the Federal level the legislation is primarily directed to issues of funding and regulating the Commonwealth health care agencies and services

24. Regulations • One of the last section in an Act confers on the Governor-General the power to make regulations that may be necessary for the administration of the Act. Regulations provide the essential details of administration which can alter more frequently than an Act can be amended by parliament

25. Few words • Autonomy - self determination –Choose right to choose • Fairness • Legislature • Bill - Act – • Judiciary • Policeman of law • Common law • Parliament law

26. The Nurses Act 1999 • Determines there will be a Nurses Board responsible for the regulation of nurses in South Australia. • The board must fulfill all of its functions under the Act with a view to ensuring the community has access to nursing care of the highest standard and to regulate nursing in the public interest

27. Review of the Nurses Act • Currently under review • Consultation is occurring between a number of key organizations such as: • RCNA (SA branch) • ACMI (Aust College of Midwives) • ANZCMHN (A&NZ College of Mental Health Nurses) • ANF • Members of general of nursing professions

28. Review of Nurses Act • The Nurses Board of South Australia is a key collaborator in this review and has the mandate, functions and powers to administer the Act in the public interest

29. Other legislation • Mutual recognition (SA) Act 1993 utilised by the Nurses Board of South Australia and Mutual Recognition Act 1992 ( Commonwealth Act) adminstered by all Australian States and Territories • Trans- Tasman Mutual Recognition (SA) Act 1999 • Administrative Appeals Tribunal Act1975

30. Other Legislation • Births, Deaths and Marriages Registration Act 1996 • Children’s Protection Act 1993 • Coroners Act 1975 • Consent to Medical Treatment and Palliative Care Act 1995 • Controlled Substances Act 1984 • Drugs Act 1908 • Drugs of Dependence (general) Regulations 1985

31. Other Legislations • Equal Opportunity Act 1984 • Firearms Act 1997 • Freedom of Information Act 1991 • Guardianship And Administration Act 1993 • Juries Act 1927 • Limitations of Actions Act 1936 • Medical Practitioners Act 1983 • Mental Health Act 1993

32. Other Legislation • Occupational Health Safety & Welfare Act 1986 • Occupational Health Safety & Welfare Regulations 1995 • Ombudsmen Act 1972 • Pharmacists Act 1991 • Public and Environmental Health Act 1987 • Racial Vilification Act 1996

33. Other Legislation • South Australian Health Commission Act 1976 • Supported Residential Facilities Act 1976 • Therapeutic Goods Act 1989 • Therapeutic Goods Regulations 1990 • Whistleblowers Protection Act 1993 • Privacy Act • Aged Care Act 1997

34. The Register and Roll • The 1999Act established a single register which records all persons that have met the entry to practice requirements for the registered nurse • The roll records all persons who have met the entry practice requirements for the enrolled nurse.

35. 2. Consent “Volunteer wiliness by the client to health intervention “

36. Consent • It is a legal requirement that health professionals obtain a consent from patients prior to any form of contact • Obtaining a patient’s consent before touching them converts what would otherwise amount to assault and battery in to lawful touching

37. Assault • Assault involves the creation in the mind of another of the fear of imminent, unwanted physical contact. The threat does not need to involve any actual touching, nor does it need to be explicitly communicated

38. Battery • The actual touching of the person without their consent • The touching of the patient must be intentional • The patient does not need to be aware. They can be asleep, comatose or anaesthetise.d

39. Consent • For the act of consent to be legally or ethically valid it must be genuinely voluntary and can be given only by a person judged to be mentally competent. • It is necessary the therapist disclose information appropriately and that patients comprehend information adequately.

40. The Major Elements of Informed and Valid Consent • Competence of the patient • Competence of the staff • Disclosure all necessary information • Volunteerism • Understanding and acceptance by the patient

41. Categories of consent • Implied Consent • Verbal Consent • Written consent

42. a. Implied Consent • The most common in the normal daily activities of health professionals. • In clinical practice the nurse must ensure their understanding of what the patient has consented to is consistent with the understanding of the patient. • “ Daily TPR , walking on to consultation room “

43. b. Verbal Consent • Agreement to treatment is stated by the patient. Must be obtained for more invasive procedures

44. c. Written consent • Hospital policy usually requires consent for invasive procedures to be obtained in writing and witnessed. • It is the responsibility of the health professional carrying out the procedure to ensure that a valid consent is obtained

45. Variations in taking consent Children Emergencies Intellectual incapacity Refusal to consent

46. 1.Children • A parent or legal guardian is capable of consenting to the medical treatment of their child. Authority of the parent is not absolute and can be overridden by the courts or through legislative provisions • Consent to Medical Treatment and Palliative Care Act 1995 • Any person over 16 years and over may consent to medical treatment

47. 2. Emergencies • ‘Doctrine of Emergency’ is used when a patient requires emergency treatment and is incapacitated to give valid consent. • When the client has refused treatment, for example a blood transfusion on religious grounds, the health unit is powerless to override the client’s stated wishes

48. 3. Intellectual incapacity • Intellectually disabled persons may have consent to treatment provided on their behalf by a relative, a person appointed under the Guardianship and Administration Board Act 1993 as a guardian or by the Board itself. Only the Board is empowered, under legislation, to consent to medical treatments and procedures such as termination of pregnancy and sterilisation

49. 4.Refusal to Consent • Other than situations where there are specific legislative provisions which authorize a substitute decision-maker, no person has the legal ability to consent to the treatment of another adult • The patient has the legal right to withdraw consent and refuse to continue to undergo the procedure, even if it will result in death or permanent physical injury

50. Bailment • The process whereby goods are entrusted to another.