HLTEN 509- APPLY LEGAL AND ETHICAL PARAMETERS TO NURSING PRACTICE

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. http://www.legalonline.vic.gov.au

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. http://www.legalonline.vic.gov.au

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. http://www.legalonline.vic.gov.au

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. http://www.legalonline.vic.gov.au

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. http://www.legalonline.vic.gov.au

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. http://www.legalonline.vic.gov.au

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. 430-431)

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 14-18 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 1973. • ‘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 2008. • Its provisions are due to commence over a period ending on 1 January 2010. 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 2009. • The Regulations took effect on 1 January 2010. • 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 Group D Acquired Immunodeficiency Syndrome (AIDS) Human Immunodeficiency Virus (HIV) infection • Chlamydia trachomatis infection • Donovanosis • Gonococcal infection • Syphilis (less than 2 years duration) • Syphilis (2 years or more duration or unspecified) • Congenital syphilis

34. Health Professions Registration Act 2005 (VIC) • This Act came into effect on 1 July 2007. • 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 2011. • 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, 2009. • 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 2009. • 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