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PAGE 93
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