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DUTY OF CARE

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					Author: Brad Robinson                  MBBS IV, 2004




     THE NEW AND IMPROVED

                 KING
                ETHICS




               MBBS ETHICS
                SUMMARY
                        Page 1 of 54
Author: Brad Robinson                            MBBS IV, 2004




Contents
(1). The Four Principles of Medical Ethics.
(2). Duty of Care.
(3). Consent.
(4). Refusal of Treatment.
(5). Standard of Care and Medical Negligence.
(6). Informed Decision Making.
(7). Advance Health Directives.
(8). Confidentiality.
(9). Notification.
(10). Boundary Violations.
(11). Commercialisation of Medicine.
(12). Ethical and Legal Issues in Treating Psychosis.
(13). Professional Regulation & the QLD Medical Board.
(14). Impaired Doctors.
(15). Second Opinions.
(16). Immunisation - Ethical Aspects.
(17). Delivering Bad News.
(18). Medical Certificates.
(19). Relationship btw Doctors & Pharmaceutical Industry.
(20). Abortion.
(21). Human research Ethics Committees (HRECs).




                          Page 2 of 54
Author: Brad Robinson                                             MBBS IV, 2004


(1). THE FOUR PRINCIPLES OF MEDICAL ETHICS

The four-principles provide a method by which clinical decisions can be
evaluated ethically.

The four moral principles are:
   1. Autonomy.
   2. Beneficence.
   3. Non-maleficence.
   4. Justice.

(1). Autonomy:
     Self-determination, free will, self-rule.
     John Stuart Mill argued that all persons should be able to develop
       according to their own values or beliefs as long as they do not interfere
       with the autonomous actions or beliefs of others.
     In bioethics the principle of autonomy asserts that humans have a right
       of non-interference when making decisions about themselves.
     Respect for autonomy only has prima facie standing and can be
       constrained by competing moral principles or by respect for the
       autonomy of others.
     In health care the principle of autonomy forms the basis for ideas
       about:
           o Treatment: Consultation with patient and agreement needed.
           o Privacy.
           o Confidentiality.

(2). Beneficence → ‘Do Good’:
     Active well doing, altruism, or conduct aimed at the good and well
       being of others.
     Requires that practitioners provide both appropriate treatment and an
       assurance that treatment will not produce more harm than good.
     Health professions have responsibilities towards society not just to the
       individual patient.
           o Practical expression of beneficence requires judiciousness and
               genuine concern for the well-being of the total society.
           o For example the wise use of scarce resources, and some
               recognition of the financial limits of clinical medicine.
     If a patient‟s autonomy is overridden due to a concern for beneficence,
       this is known as paternalism → there are two types of paternalism:
           o Weak: Beneficent action towards people clearly not in a position
               to make informed decisions themselves.
           o Strong: Based on the belief that it is sometimes ethical and
               proper for the health care worker to effect beneficent actions
               even if the patient is competent and disagrees with the decision
               made.
           o Weak generally accepted – strong thought to be generally
               indefensible.




                                 Page 3 of 54
Author: Brad Robinson                                             MBBS IV, 2004


(3). Non-maleficence → ‘Above all, do no harm’:
     Difficult to separate out beneficence and non-maleficence, as many
       bioethical issues require consideration of both.
     Issues of non-maleficence and beneficence are particularly apparent in
       decisions regarding the institution of dangerous therapy, or withdrawal
       of therapy that is no longer thought to be beneficial.
     After consideration of beneficence and non-maleficence together, need
       to produce net benefit over harm.
     Need to separate the two out when circumstances are such that you
       can not recognise any obligation of beneficence but still have a duty not
       to harm them.

(4). Justice:
     Fairness, rightness, equity, integrity.
     In the general sense, justice refers to standards and expectations
       which any society holds concerning relations between members of that
       society.
     Notion of justice often described in three ways:
           1. Justice as fairness: Connotes equality.
           2. Comparative justice: Appropriate levels of health care can only
              be afforded to individuals by weighing up the competing claims
              of other people - resources need to be distributed on the basis of
              impartial indicator such as need.
           3. Distributive justice: Distribution of resources on the basis of
              various moral, legal and cultural rules that form the cooperative
              basis for society. Strive for an average or common good that
              protects against any neglect of the disadvantaged.




                                 Page 4 of 54
Author: Brad Robinson                                               MBBS IV, 2004


(2). DUTY OF CARE

Negligence

Three basic elements needed to establish a case of medical negligence:
   1. That a defendant owes a duty of care to the plaintiff;
   2. That the appropriate standard of care has been breached; and
   3. That as a result of the breach damage has been caused to the
      plaintiff and the likelihood of damage was not „too remote‟.

(1). Duty of Care
     Must take reasonable care to avoid acts or omissions, which you can
       reasonably foresee, would be likely to injure your neighbour.
     Who is my neighbour?
           o Persons who are so closely and directly affected by my act that I
               ought reasonably to have them in contemplation as being so
               affected when directing my mind to the acts or omissions which
               are called into question.
           o Depends on foreseeability and proximity.
     Reasonable foreseeability that a person or class of persons would
       likely be affected by the action or inaction.
     Three types of proximity that act as limits on the notion of
       foreseeability in establishing duty of care:
           1. Physical.
           2. Circumstantial.
           3. Causal.

Lowns vs. Wood:
   A boy is fitting on the beach.
   This case found that a Doctor does not have a duty of care to assist
     even if failure to do so results in injury or death if that person is not and
     has never been in a relationship with the doctor.
   Proximity – and therefore relationship - was established as found to be
     in physical, circumstantial and causal proximity.
   Special circumstances created the relationship of proximity despite
     lack of previous doctor/patient relationship.

(2). Standard of Care – Was it breached?
     Establish the relevant standard of care and decide if there has been a
       breach of that standard.
     Those who undertake work or activities requiring special skill must not
       only exercise reasonable care but must measure up to the standard of
       proficiency that can be expected from the ordinary skilled person
       exercising and professing to have that special skill.

(3). Damage:
     No action can be brought in negligence unless some damage has
       resulted from the breach of the standard of care.




                                  Page 5 of 54
Author: Brad Robinson                                           MBBS IV, 2004


General:
   A doctor is under no duty to attend a person who is sick even in an
     emergency if that person is one who the doctor is not and never has
     been in a professional relationship of Doctor and patient.
   In general the common law does not impose a duty to assist a person
     in peril even where it is foreseeable that the consequence of a failure
     to assist will be injury or death of a person imperilled.
   BUT in Lowns Vs Wood proximity – therefore relationship therefore
     duty of care - was established → however, ethically this is not
     necessarily the same.

Kinds of Medical Negligence:
    Failure to attend an emergency.
    Failure to adequately inform of consequences and risks.
    Failure to diagnose or incorrect diagnosis.
    Failure to diagnose at an appropriate time.
    Failure to attend (eg failure to make a house call) or examine.
    Failure to provide adequate advice.
    Failure to refer.
    Failure to adopt recognised precautions.
    Failure to treat appropriately for a particular condition.
    Failures in communication.




                                Page 6 of 54
Author: Brad Robinson                                              MBBS IV, 2004


(3). CONSENT

Consent is authorisation by a competent person of an action which affects the
authorising person.
    Failure to obtain consent is equivalent to interference without
       authorisation.

Elements of consent:
    Authorisation is voluntary.
    Patient is informed.
    Patient comprehends the information.
    Patient is a competent person.

Legally valid consent:
    Must be given for a legal procedure.
    Covers a specific procedure.
    Must be given to a specific doctor.

Elements of competency:
    Comprehension → plus ability to recall the nature, purpose and effects
     of the proposed treatment.
    Decision conforms to the patient‟s life values and beliefs.
    Decision making involves appropriate considerations regarding
     alternatives and consequences.
    Moral reflection.
    Ability to make a decision and defend the choice.
    Ability to communicate the decision to others.
    Capacity to persevere with the choice until the decision is acted upon
     → i.e. act on it.

Consent and trespass

Failure to gain consent constitutes trespass.
    Trespass is a civil wrong against the person/land/property.

Invalid consent = unauthorised invasion = trespass = assault and/or battery.
    Assault = Intentional/reckless act causing fear or harm.
    Battery = intentional/reckless application of force without consent →
       may occur even if the patient didn‟t know it happened.

Trespass is actionable even if life is saved as a result of the action and no
harm was caused → trespass does not require damage.
    In contrast, negligence requires damage.

If a patient has been generally informed of the procedure, and hence valid
consent was obtained, if complications arise any failure is considered
negligence instead of trespass as it represents a breach in the duty of care.
     Actions in trespass relate to the issue of valid consent → advise
        patients in broad terms.


                                 Page 7 of 54
Author: Brad Robinson                                             MBBS IV, 2004


      Actions in negligence relate to the issue of informed decision making
       → need to advise patients in greater detail.

Types of consent:
    Express, implied.
    Verbal, written.
    Advance health directive → consent/refusal in advance in a competent
      state for a foreseeable situation in which the patient is not likely to be
      capable of making a competent decision.

Consent forms:
   Give evidence that valid consent has been given.
   HOWEVER, consent is a process of communication, not a
     form/incident.

Consent in childhood and adolescent illness

Young children:
   Parents or guardians can consent to medical treatment but the
     treatment must be in the child’s best interests.
   If such treatment is refused by carers, doctors or others may apply to
     the family court in order to carry out the treatment.
   Overturning of parental authority and handing of it to the courts may
     occur when:
        o Child abuse.
        o Parental incompetence.
        o Parental insistence on futile treatment.
        o Blood transfusions for JW children.

Older children:
    Only in SA and NSW is there a statutory right for older children who
      are younger than 18 to consent to their own treatment.
          o In NSW minors >14 can consent to treatment if deemed
             competent.
    In other states, including Queensland, older children have a common
      law right to consent to treatment as mature minors who are competent
      to decide.
          o Based on understanding of nature and consequences.
          o Based on the Gillick case and endorsed in Australia through
             Marion‟s case.

Gillick competence:
     A minor is capable of giving consent when he/she achieves a sufficient
       level of understanding and intelligence to enable him/her to
       understand fully what is proposed.
     Parental power to consent to medical treatment on behalf of a child
       diminishes gradually as the child‟s capacities grow → this rate of
       development depends on the individual child.




                                 Page 8 of 54
Author: Brad Robinson                                              MBBS IV, 2004


      Right of parent to decide in child‟s best interests ceases on child‟s
       achievement of capacity.
      The more serious the procedure the more assured we need to be
       about the child‟s competence.

While a minor may consent to treatment against the wishes of their carer,
refusal of treatment is different → they are less able to refuse treatment.
     In cases where the consequences of refusal would be grave, more
       hesitation exists in complying with the child‟s refusal.
     Recent English decisions have upheld the right of a court to override a
       Gillick competent minor‟s refusal of treatment where such refusal
       would result in serious injury.
     One argument for the double-standard is that as the child is limited in
       experience and judgement the decision may not be made with a
       considered long-term view in mind.

Certain procedures are beyond the purview of parental consent/refusal at all.
    The family court must decide on non-therapeutic sterilisation of a child,
       and only authorise it if it assesses it in her best interests → Marion‟s
       case.

Need to always consider that while under 18‟s may make their own decisions,
they remain dependent on their carers and are usually part of a family which
is affected by their actions.

Developmental characteristics of mature minors:
   Need for privacy.
   Strong identification with peers.
   Rejection of parental authority → emancipation.
   Assertion of capacity for responsibility.
   Decision making competence (in some cases).




                                  Page 9 of 54
Author: Brad Robinson                                             MBBS IV, 2004


(4). REFUSAL OF TREATMENT

There is an absolute symmetry between refusal of treatment and consent to
treatment → both require:
     Voluntary decision.
     Informed decision.
     Patient comprehends the information.
     Competent patient.
     Relates to a specific procedure.

A decision to refuse treatment is taken to be a personal one, not a medical
decision → it is firmly based in the ethical principle of autonomy.
    Based on the fundamental right of self-determination.
    However, it must be informed by medial knowledge.

The rule of „negative liberty‟ applies to health care and is upheld by the
common law:
    You have no right to treat me if I have refused to authorise that
      treatment → treatment against a patient‟s will is battery/assault.
    Competent patients are entitled to refuse medical treatment even
      though that refusal may lead to death.

Medical duty of care motivates Doctors to act in a patient‟s best interests.
   Ethical difficulties arise when a competent patient refuses treatment
      which appears to be in their objective interests.

Forms of refusal:
    Patient may verbally decline treatment for themselves or others (eg
      getting child vaccinated).
    A patient‟s action may demonstrate refusal → leaving hospital
      indicates unwillingness and constitutes his refusal.
    More formal methods → advance health directives.

Competence and rationality

Competence is the capacity to make decisions.
   It is the capacity to understand the nature and consequences of
     medical procedures to be undertaken.

Many factors complicating the refusal of treatment scenario:
   Patients change their minds.
   They may be being influenced by others.
   Transient medical conditions, and depression, can affect their decision-
      making competence.

Doctor has a medical duty to explore the patient‟s motivations for refusing
treatment.
     Immediate agreement by the doctor not to treat or to withhold
      treatment may amount to abandonment of that patient.


                                Page 10 of 54
Author: Brad Robinson                                               MBBS IV, 2004




Refusals of treatment must be interpreted on the basis of rationality → i.e. is
a competent person making an irrational decision?
    Person may be competent to hold beliefs, but these beliefs may be
      faulty and thus a decision based on them may be irrational.
    If the patient‟s desires are based on false or inconsistent beliefs, or
      faulty reasoning, this is arguably false autonomy.
    In such cases the doctor/health professional (to truly respect
      autonomy) has an obligation to try and interpret, educate and correct
      these misconceptions.
    Respecting autonomous refusals therefore involves interpretation,
      education, and the correction of false isolate beliefs of the patient.

Furthermore, a doctor‟s assessment of the patient‟s competence may be
skewed by the conflict between the patient‟s decision and what is in the
patient‟s objective interests.

Pitfalls:
     Some Doctors will define their patient as incompetent just because
        they refuse the treatment recommended.
     Some Doctors may misinterpret the scope and specificities of refusals
        of treatment through advance health directives differently from how
        things were intended by the patient if the patient‟s wishes reflect values
        not shared by the Doctor.
     Tendency to think that where there are significant risks of treatment
        refusal, such as death, Doctors should demand a higher level of
        competence from patients than is required from them in consenting to
        treatment.

Treating without consent

Treating without consent/overriding treatment refusals:
    Emergency:
          o This may require treatment without the consent of either the
              patient or anyone else because consent cannot be given, but it
              is reasonably regarded as implied.
    Necessity:
          o These first two usually involve treatment without consent, as
              opposed to where consent has been refused.
    Patient not competent to refuse treatment:
          o This does not allow treatment to proceed without consent → the
              rule is to identify the relevant decision-making authority in the
              circumstances eg advance health directive if one exists.
          o Note the difficulty concerning the issue of rationality.
    Minors:
          o A higher standard of decision-making competence on behalf of
              the minor is required in cases of refusal, especially where this
              would lead to death or serious morbidity.
    Patient‟s best interests:



                                 Page 11 of 54
Author: Brad Robinson                                             MBBS IV, 2004


          o These are accepted as a justification for treating without
              consent where consent cannot be given, but not where refusal
              has been expressed (where autonomy is at stake).
      Previous refusal does not cover a new situation or is too narrow in
       scope.
          o Both consent and refusal may be invalid when circumstances
              change.
          o This applies to advance directives too.
          o This may give rise to difficult cases of interpretation.

Legal provisions supporting patient‟s rights to refuse treatment:
    VIC, ACT, SA and the NT has refusal of treatment legislation eg the
      ability to write advance health directives that operate to provide
      treatment refusals once a patient has lost his/her decision making
      competence.
    QLD enacted the Power of Attorney Act (1998) → this provides for the
      appointment of an attorney for health matters and the writing of
      advance directives.

Need to consider if patients have the right to refuse a treatment if the
alternative treatment is more costly → need to consider the issue of
resources.
     To what extent should we respect autonomy if this contributes to an
       unjust distribution of resources?

Increasingly, refusal of treatment will also be seen as a resource allocation
issue.




                                 Page 12 of 54
Author: Brad Robinson                                              MBBS IV, 2004


(5). STANDARD OF CARE AND MEDICAL NEGLIGENCE

There are many ways in which doctors may be considered to have fallen
below a reasonable standard of care → kinds of medical negligence include:
    Failure to diagnose or incorrect diagnosis.
    Refusal/failure to attend or examine.
    Failure to provide adequate advice.
    Failure to appropriately refer.
    Failure to adopt recognised precautions.
    Excessively painful treatment.
    Treatment errors.
    Failures in communication.

The standard of care applicable to all cases of negligence is that of the
exercise of reasonable care to avoid foreseeable risks → reasonable
person consideration:
    Would a reasonable person have foreseen a risk of injury?
    What should a reasonable person who saw the risk have done to avoid
      it?

Reasonable care provided by a person in a specific area is that of the
ordinary skilled person exercising and professing to have that special skill.
    The difficulty for a given group is establishing what is reasonable?

Subjective person standard: After the reasonable person consideration, the
doctor needs to consider whether this particular patient, if warned of the risk,
would be likely to attach significance to it.
    This is more subjective and is subject to the therapeutic privilege.

This statutory duty exists whether or not the patient asks for the information.

The Bolam Principle

Bolam principle: A general principle indicating that doctors cannot be found
to be negligent if they act in accordance with what a reasonable body of
medical opinion deems proper at the time → the professional practice
standard.
     This is applied to all areas of practice, including diagnosis, treatment,
       and disclosure of risk.

Since the early 1980‟s Australian courts have been moving away from this
principle → this represents a general rejection of medical paternalism.
     Rejection of this principle was crystallised as law in Rogers v Whitaker.
     The ultimate question is whether it conforms to the standard of
       reasonable care demanded by the law. That is a question for the court
       and the duty of deciding it can not be delegated to any profession or
       group in the community.

However, professional opinions and practices are not irrelevant.


                                 Page 13 of 54
Author: Brad Robinson                                            MBBS IV, 2004


      „While evidence of acceptable medical practice is a useful guide… the
       standard is not determined solely or even primarily by reference to the
       practice followed or supported by a responsible body of opinion in the
       relevant profession or trade‟.

Summary:
   Australian courts do not accept what is currently accepted as medical
    practice in determining the standard of care, but they must take it into
    account when judging whether an acceptable standard of care has
    been reached.
        o Australian trend towards a court-determined standard for
            information disclosure.
   The factors according to which a court determines whether a medical
    practitioner is in breach of the requisite standard of care will vary
    according to whether it is a case involving diagnosis, treatment, or the
    provision of information or advice.
   Diagnosis and treatment cases:
        o Professional opinions still play a part in assisting courts to
            determine whether the requisite standard of care has been met.
        o Professional practices relevant but not determinative.
   Disclosure:
        o Professional practices less influential in determining whether a
            doctor has acted reasonably.
        o Is tied to what is relevant to the patient, and hence does not
            take its direction from what is accepted in the profession → the
            profession takes its direction from what the court has indicated.
   However, the medical indemnity crisis of the late 1990‟s has
    precipitated change in various state‟s legislation, including QLD, which
    has returned closer to the Bolam principle of determining the standard
    of care.

Causation

Causation: Patient needs to demonstrate (rather than just claim) that they
would not have had the operation given different information.
   Successful negligence action requires the demonstration that the
      patient was harmed by the breach of the standard of case → the
      breach of the standard of care legally caused the harm.

Causation needs to be proven for an action in negligence to be successful.
   As in material risk, this can be assessed in objective and subjective
     ways.
   When a patient sues a doctor for negligence they need to show that
     they would not have had the operation given different information, not
     that any reasonable person would not have proceeded.
   This, while easy to claim, must be demonstrated in some way, not just
     claimed.




                                Page 14 of 54
Author: Brad Robinson                                             MBBS IV, 2004


The Medical Indemnity Crisis and Reforms to Medical Negligence

Changes were made to medical indemnity in response to:
   Excessive medical litigation.
   Perceptions of excessive premiums.
   Over-generous damages awards.
   Determination of the standard of care by the courts.

Legislative change:
    In 2001 NSW introduced legislation which restricted damages awards
       in personal injury cases.
    In 2002 Queensland introduced legislation which capped large claims,
       streamlined legal procedures, and encouraged structured settlements
       in preference to lump sums.
    Commonwealth pressured by AMA to introduce change → it initiated
       the IPP Review of the Law of Negligence, whose primary purpose was
       to propose common law reform aimed at limiting liability and quantum
       of damages arising form personal injury and death.
           o It made various recommendations, some of which have been
              incorporated into recent legislation eg QLD‟s Civil Liability Act
              2003.
           o This legislation represents a return to the Bolam principle of
              determining the standard of care, except that it includes an
              „irrationality‟ clause.
           o However, this will not result in a total reversal back to Bolam, as
              all professional opinion is now held to increasingly higher
              standards of evidentiary support than in previous years, largely
              as a result of development of EBM.




                                Page 15 of 54
Author: Brad Robinson                                             MBBS IV, 2004


(6). INFORMED DECISION MAKING

Medical malpractice suits:
   For allegations of malpractice, around 50% relate to inadequate
      explanation/communication.
   The number of claims pertaining to medical malpractice are increasing.
   The average payout for such claims is increasing.

Practical questions of consent:
    How much information must be provided vs. should be provided?
    How do we accommodate individual needs for information →
       subjectivity.
    How is comprehension assured?

How much disclosure is required?

NHMRC guidelines on information provision:
   Nature of the illness.
   Proposed approach to investigation, diagnosis and treatment.
   Expected benefits.
   Common side effects.
   Material risks.
   Who will undertake the procedure.
   Other options.

Practitioner has a duty to warn a patient of a material risk inherent in the
proposed treatment.
    A material risk is one which:
           o A reasonable person would be likely to attach significance to
              (objective) OR
           o The practitioner is aware, or should be aware, that the particular
              patient, if warned of the risk, would be likely to attach
              significance to it (subjective).

Recommended disclosure of information about risks that are:
   Common though slight.
   Rare though serious.

Withholding information

Information can only be withheld in very limited circumstances.

Therapeutic privilege: The medical profession has a right to not disclose
information in circumstances where the doctor considers that the disclosure
would lead to significant patient harm.
     The right not to disclose information demands a high threshold of
       probability of harm, given current views on autonomy.




                                Page 16 of 54
Author: Brad Robinson                             MBBS IV, 2004


Murtagh‟s diagnostic method:
   Probability diagnosis.
   Serious disorders not to be missed.
   Common pitfalls (often missed).
   The Seven Masquerades
   Is the patient trying to tell me something?




                               Page 17 of 54
Author: Brad Robinson                                          MBBS IV, 2004


(7). ADVANCE HEALTH DIRECTIVES

Advance Health Directives are ethically based in the concept of autonomy.
    They represent an attempt to extend self-determination beyond
     competency.
    They allow the projection of an individual‟s wishes to a period of
     anticipated incapacity and thus assume that patient choices will remain
     stable over time.
    Avoids quality of life decisions having to be made by others → i.e. is
     the quality of life such that it is worth living?
    Represents the first (top) tier in the hierarchy of decision-making.
    Reflects community concern about loss of mental faculties and control,
     particularly at the end of their life.

AHD‟s:
   Written.
   Can be made by anyone over the age of 18.
   May extend to right to refuse treatment.
   Do not constitute euthanasia → only allows for legal consent.
         o AHD‟s can be used as decision-making tools in end of life
             decisions.
         o AHD‟s act in patient‟s best interests when the patient is deemed
             competent to give such direction → euthanasia is not
             considered to be a legal or competent decision.
   Only active where decision-making capacity is impaired.
   Have general instructions for any time a person can‟t speak for
      themselves.
   May have specific instructions for treatment in terminal illness.
   Represent the only way that life-sustaining measures for incompetent
      patient‟s can occur.
   Must be signed by a doctor, independent witness, and patient.

Non-compliance with an AHD:
   Terms are uncertain or contradictory.
   Contrary to good medical practice.
   Inappropriate because circumstances have changed.
   Inappropriate because of advances in medical science.
   When the doctor is considering deviation should consult with the adult
      guardian.

Hierarchy of decision-making

      Competent patient.
      Advanced health directive (if it covers the specific situation).
      Guardian (if one is appointed).
      Attorney (appointed under the Enduring Power of Attorney Act) → act
       for personal matters eg finance, health etc.
      Statutory health attorney → spouse, carer, etc.
      Adult guardian:


                               Page 18 of 54
Author: Brad Robinson                                              MBBS IV, 2004


         o An independent statutory officer appointed by the Guardianship
             and Administration Tribunal to protect the rights and interests of
             adults with impaired capacity.
         o Problems inherent in this revolve around the best interests
             being an assessment by others.
      Guardianship and Administration tribunal.
      Mental health act (involuntary patient).

Who can substitute decisions for an incompetent patient?

(1). Attorney appointed under the Enduring Power of Attorney Act.
     Someone appointed by the patient to make decisions on their behalf
        when they are incompetent to do so.
     Attorney should make decisions that reflect what the patient would
        have decided.
     Such decisions include:
           o Health care.
           o Personal matters such as where the person lives and who with.
           o Financial matters such as doing the person‟s banking.

(2). Statutory Health Attorney.
     First available and culturally appropriate person (in order of priority).
           o Spouse.
           o Person‟s primary carer but not a paid carer.
           o Close adult relative or friend.
     You do not have to sign papers to officially appoint a statutory health
       attorney.

(3). Adult Guardian.
     An independent statutory officer appointed by the Guardianship and
       Administration Tribunal (under the Guardianship and Administration
       Act 2000).
     Function is to protect the rights and interests of adults with impaired
       competence.
     Can offer support and advice to guardians, attorneys, administrators
       and others acting informally.
     Can be responsible for making decisions on health matters on behalf
       of adults with impaired capacity when:
           o There is no attorney.
           o There is a dispute between attorneys.
           o There has been a breech of duty by an attorney or guardian.

The appointed attorney must, to the greatest extent possible:
    Seek the adult‟s views and wishes.
    Take information given by the adult‟s health provider into account.

Where two treatment options are available the choice must be the least
restrictive alternative.




                                 Page 19 of 54
Author: Brad Robinson                                          MBBS IV, 2004


General

Refusal of treatment may occur via:
    Verbal.
    Action → refusal to sign a consent form.
    Formal legal means → Advance health directive.

Such a refusal must be:
    Voluntary
    Informed
    Competent
    For a specific procedure

HOWEVER, even if a patient is incompetent, consent must still be obtained.
   Two new laws clarify who makes such a decision when the patient is
    incapable of doing so.

(1). Powers of Attorney Act (1998):
     Came into effect on 1st June, 1998.
     Recognises an Advance Health Directive → becomes effective when
       the person making it has impaired capacity.
     Allows for the appointment of an eligible attorney under the Enduring
       Powers of Attorney → such a person can attend to financial and
       personal matters, including health care.
     The Act also authorises a Statutory Health Attorney to make decisions
       about health care matters for a person who lacks capacity → may be
       next of kin, etc.

(2). Guardianship and Administration Act (2000):
     Establishment of the Guardianship and Administration tribunal.
          o This body has a role in substituted decision-making through the
             appointment of Guardians and Administrators.
     Covers health and special health care.
     Adult guardian.
     Public advocate.
     Community visitor program.




                                Page 20 of 54
Author: Brad Robinson                                             MBBS IV, 2004


(8). CONFIDENTIALITY

Fundamental reason for confidentiality:
    Individual benefit: If a patient knows that their doctor can be trusted to
     keep the information provided to them confidential they may disclose
     more information → allows better care.
    Public interest: Makes for more appropriate individual care.
        o Increased trust and better health standards.
    Both of these kinds of interests are interests in health.

In Western countries confidentiality is underpinned by common law,
professional codes of practice, and legislation.
    It may be less important in cultures with less individualistic and more
      community-oriented traditions.

Obligation to maintain patient confidentiality is increasingly difficult
considering:
    Written/electronic medical records.
    Multidisciplinary health care teams.
    Multiple claims for access to medical information → eg legal matters,
      insurance, occupation health assessments of fitness to work.
    Existence of IT databases and increased transmissibility of medical
      information.
    Public health developments for epidemiological information and
      notification requirements.
    Genetic information.
    Medical certificates.

Everyday failures in confidentiality:
    Corridor consultations i.e. completing consultation as you move from
      consulting room to the waiting room.
    Giving results within earshot of other patients.
    Consulting/waiting room discussions of patients with colleagues.
    Discussions of known patients with friends, family and colleagues.
    Chart security i.e. allowing charts, results or computer screens to be
      viewed by patients and other unauthorised people.
    Providing details on medical certificates which are not authorised by
      patients.
    Failure to educate staff eg receptionists.

While patients benefit medically from having their details kept private they
may sometimes benefit medically by having their privacy breached eg telling
someone of a patient‟s drug addiction so they can help the addict to
overcome it.
    However, decisions to breach confidentiality are not merely a matter of
      weighing the benefits and harms:
          o Should be regarded as exceptional and requires robust
             justification → confidentiality needs to approach absolute status,
             or risk losing its point.


                                Page 21 of 54
Author: Brad Robinson                                            MBBS IV, 2004




The AMA code of ethics states:
    “Exceptions may arise where the health of others is at risk or you are
     required by order of a court to breach patient confidentiality” →
     however this is vague.

The law views the breaching of confidentiality in terms of two competing kinds
of public interest:
    1. The public interest in keeping medical confidences private.
    2. Public interest in protecting the public from harm.
     The law requires that for the second to trump the first there must be a
       serious risk of harm from non-disclosure which outweighs the risk of
       damage to the public interest in maintaining confidence.
     Must overcome the moral harm to individuals from disclosure.

NB: There is no doubt that the originator of a medical record is the owner of
that record → established in Breen vs Williams 1995.
    Out of respect for autonomy, more patients are being granted access
       to their records.
    The Privacy act entitles all patients the right to access their publicly
       held records, and amendments to the privacy act have provided all
       Australian patients with access to their own privately held records.

Exceptions to keeping confidentiality

(1). Patient voluntarily consents to the release of confidential information:
     This requires the patient understands what information is to be
       disclosed.
     Only the information that the patient agrees to disclose can be given to
       a third party.
     The party to whom it is given must keep it confidential.

(2). Patient gives implicit consent:
     Medical certificates for work.
     Referrals to specialists.
     Writing prescriptions.
     Reports to third parties eg insurance.
     Hospitals and group practices.

(3). Mandatory disclosure under law:
     Notifiable conditions:
         o Births and deaths.
         o Peri-natal statistics.
         o Notifiable diseases including STDs.
         o Cancer.
         o Child abuse.
         o HIV/AIDS etc.
         o Medical fitness eg to drive.
         o Blood alcohol readings.


                                Page 22 of 54
Author: Brad Robinson                                              MBBS IV, 2004


           o Drug dependent persons.
           o Notifications to coroners.
           o Death certificates.
      Disclosure under Health Insurance Act: For the prevention of
       Medicare fraud.
      In Victoria doctors have a statutory obligation to report colleagues
       whose ability to practise safely is impaired.
      Court orders:
           o Doctors may be required to attend and provide evidence in
              criminal matters, and medical records may be subpoenaed.
           o Privilege does not apply to the doctor-patient relationship.

(4). Medical research:
     Involves technical breaches of confidentiality.
     Subject to legislation which protects personal details → Privacy Act.
     Epidemiological research is dependent on access to records → can be
       carried out in a way which de-identifies patients.

(5). Public Interest exception in breaching confidentiality.
     Certain statutes protect the public from harm but require the doctor to
       breach confidentiality → but indemnifies them from legal action.
     Conditions:
           o Must be serious and immediate risk of harm.
           o Harm must be reduced by the disclosure.
           o Disclosure should be of the minimal amount possible to avert
               the risk.
           o Resulting damage to public opinion of failure to maintain
               confidentiality is less than the damage the breach averted.

Law’s Requirements for Confidentiality

Statutes which make confidentiality compulsory include:
    Commonwealth → Privacy Act.
    State → FOI, Health Services Act, Health Act.

Professional misconduct:
    Health Practitioners (Professional Standards) Act 1999 provides for
      disciplinary action against practitioners for unsatisfactory profession
      conduct.

Common law:
   Acknowledgement that the doctor-patient relationship forms a contract
    which imposes a duty of care upon the doctor → breaches of this
    therefore considered negligence.
   For legal action to be taken:
        o Must be a doctor-patient relationship forming a contract which
           implies confidentiality.
        o Issue of confidentiality was of serious concern to the patient.
        o Breach of the confidentiality was the cause of some damage.


                                 Page 23 of 54
Author: Brad Robinson                                            MBBS IV, 2004


      May lead to suits for damages in both breach of contract or duty of
       care (negligence).




                                Page 24 of 54
Author: Brad Robinson                                            MBBS IV, 2004


(9). NOTIFICATION

Principles of notification

Notification: Aims to protect the community from foreseeable harm.
    Research patterns of disease and predict disease behaviour.
    Identify clusters of disease → to research, contain and prevent.
    Treat individuals with disease and minimize spread through education,
       contact tracing, coercion.
    Plan service delivery → according to disease pattern and behaviour.
    Allocate recourses.
    Identify side effects of drugs → reduce future risk.
    Prevention of road accidents.

Issues:
    Balance disease containment against infringements of liberty.
    Encourage individual responsibility to minimize community risk.
    Use contact tracing powers ethically.
    Ensure patient confidentiality and minimize breaches.
    Protect those with diseases or other conditions from discrimination.
    Provide statutory protection to those who must break confidences in
      making notifications.

Notifiable conditions

Notifiable condition: A medical condition of significance to public health.
    Births/deaths.
    Peri-natal statistics.
    Notifiable diseases, e.g. HIV/AIDS.
    Cancer.
    Child abuse.
    Immunisation.
    Blood alcohol.
    Drug dependent persons.
    Criminal notifications.

Voluntary notifications:
    Adverse drug reactions.
    Medical fitness to drive.
    Pap smear register.

Deaths:
   Notified under the Births, Deaths and Marriages Register 1995
   Death certificates needed for:
        o Family
        o Medical
        o Legal
        o Patterns of health.



                                 Page 25 of 54
Author: Brad Robinson                                                 MBBS IV, 2004


           o Information to direct health care resources and research.
      Information recorded includes:
           o Demographics.
           o Place of death.
           o Cause of death  primary and secondary.
           o Duration of last illness.
           o Certifying medical attendant.
           o Details of family.
           o Details of burial.
                                                                HIV testing and
                                                                notification
Infectious diseases:
                                                               Pre-test counselling
    Reported under Public Health Legislation                      necessary.
    Need to notify infectious diseases for:                   Details notified include:
          o Prevention of secondary spread                   - Demographics.
              prophylaxis for contacts at risk.               - Exposure category.
          o Monitoring disease trends.                        - Past medical history.
                                                              - Clinical status  viral
          o Detecting clusters or outbreaks of                     load etc.
              disease.                                        - Antiviral treatment.
          o Knowledge of disease determinants.
    Health Act states that “a person must not deliberately or recklessly
       place another at risk of infection from a controlled notifiable disease,
       thus:
          o Contact tracing is part of the public health response to notifiable
              notifications  aims to prevent secondary spread.
          o Implies powers to stop risky behaviour.

Cancer:
   Information recorded on the cancer register includes both individual
     and aggregate statistics
   Notifications received from:
        o Hospital
        o Pathology lab
        o Private practitioners
        o Death certificate
        o Autopsy results
   Why is cancer notification required?
        o Information used in epidemiological or clinical studies regarding
           incidence
        o Health resource planning
        o Survival rates




                                  Page 26 of 54
Author: Brad Robinson                                            MBBS IV, 2004


(10). BOUNDARY VIOLATIONS

Professional boundaries:
    The „edge‟ or limit to professional behaviour.
    A set of rules (implicit or explicit).
    Establishes the professional relationship as separate from other
      relationships.
    Implies professional distance and respect.
    Involves careful use of power in the professional relationship →
      necessary as there is an inherent power differential.

They are needed to:
    Maintain therapeutic efficacy.
    Prevent harm to patients, particularly those that may be vulnerable.
    Provide „space‟ to the therapist.
    Treatment must involve the creation of an atmosphere of safety and
      predictability for the patient.

Reasons sexual relationships are inappropriate include:
   There is an inherent power differential in the relationship between a
     doctor and their patient which manifestly advantages the doctor.
         o This undermines the patient‟s capacity to consent to a sexual
             relationship and thus undermines their autonomy.
   Such a relationship may actually be harmful to a patient who may
     already be struggling under the burden of physical or mental illness
     (counter to non-maleficence).
   A sexual relationship between the doctor and patient erodes the
     doctor‟s capacity to make sound and appropriate clinical judgements
     for the patient → interferes with the best provision of care and thus the
     physician does not perform their duty of care and places their needs
     over their patients (duty of care, beneficence).
   The doctor patient relationship is a fiduciary relationship where the
     patient pays a fee for the service of the professional → a sexual
     relationship removes the professional distance and objectivity (counter
     to principles of justice).

The responsibility for defining and maintaining boundaries (and the proper
personal distance) falls with the Doctor.
    Requires ongoing attention.
    Need to be vigilant about changes over time.

The therapeutic frame is created by:
    Absence of physical contact other than handshake or clinical
      examination.
    Circumscribed location and length of appointment.
    Maintenance of confidentiality.
    Declining lavish gifts.
    Avoidance of social or financial relationships.
    Ensuring relative asymmetry of self-disclosure.


                                Page 27 of 54
Author: Brad Robinson                                              MBBS IV, 2004




However:
   Professional boundaries do not imply rigidity or remoteness → they
     allow the demonstration of warmth, empathy and spontaneity within a
     climate of safety.
   Central theme of all treatment relationships is the willingness of the
     doctor to forego their own gratification in the interests of assisting the
     patient.

Boundary crossings:
   Social/sexual relationships.
   Physical contact.
   Time and length of appointments (eg extending them for favoured
     clients).
   Fees (eg waiving them).
   Allowing other economic transactions (eg barter).
   Language (eg over-familiar).
   Self-disclosure (telling patient too much about yourself).
   Receiving gifts from patients.

Beware:
   Non-sexual violations may also cause harm to the patient.
   Attention to minor crossings may prevent descent on a slippery slope to
     sexual violations.

General rules → criteria for determining whether a relationship between a
patient and doctor is appropriate:
    Treating relationship must not have involved psychotherapy or
       counselling.
    Former patient must not have a history of sexual trauma at the time
       relationship starts.
    Patient cannot suffer from any disorder likely to impair judgement or
       decision-making.
    Patient must be >/=18 years of age.
    Treating relationship must have been formally terminated and referral
       arrangements made.
    Sexual relationship must not start within one year of termination of
       relationship (NB: This time frame is NOT definite – it is arbitrary).
    Social contact only after one year of termination of treating relationship.
    If former patient initiates social contact within one year of termination of
       treating relationship it must not take place in any setting related to the
       doctor‟s practice of medicine.
    Doctor must refrain from counselling/treating at all times once sexual
       relationship has been initiated (emergencies the only exception).




                                 Page 28 of 54
Author: Brad Robinson                                               MBBS IV, 2004


(11). COMMERCIALISATION OF MEDICINE

Marketing a practice: Telling people that you are available for consultation is
not necessarily a bad thing.
    However, promotion which dispenses goods or services free of charge
      (with the subtext of some sort of quid pro quo) is ethically dubious.

A similar sort of ethical restraint should be exercised when accepting gifts or
endorsements from drug companies or other parties interested in receiving
referrals (eg specialists, pathology or radiology services).

Laws on advertising

Medical Board of Queensland: Amendment By-law (No. 1.) 1997

Prohibition on medical practitioners advertising in certain ways:

13, A medical practitioner must not advertise, or authorise another person to
advertise, about the professional services provided by the medical practitioner
if the advertisement -
        (a) is false, misleading or deceptive or likely to be misleading or
        deceptive; or
        (b) unfavourably compares the professional services provided by
        another medical practitioner with the professional services provided by
        the medical practitioner; or
        (c) contains testimonials or other endorsements of the medical
        practitioner; or
        (d) is vulgar or sensational in a way that would be likely to affect
        adversely the standing of the medical profession.
        Maximum penalty – 30 penalty points.
„
Advertising about areas of expertise‟:

14. A medical practitioner must not advertise, or authorise another person to
advertise, the medical practitioner as having expertise in an area of medicine
if the medical practitioner does not have the appropriate qualifications,
training, skills or knowledge to practise in the area.
        Maximum penalty – 30 penalty points.

Unfavourably comparing other doctors to yourself can be a subtle distinction
to make eg stating reasons why someone might like to transfer from another
practice to your practice.

Be careful when advertising "areas of interest" as a GP.
    Is this claiming expertise where you might not have the appropriate
      abilities or qualifications?

There is the suggestion from the ACCC's competition policy arm (which uses
the legal justification of the Trade Practices Act in attempts to open up
restricted areas to more competition) that certain areas of medical practice (eg


                                 Page 29 of 54
Author: Brad Robinson                                           MBBS IV, 2004


specialties) are operating in monopolistic and uncompetitive ways, against the
interests of health consumers.
     Such a model arguable fails to take account of many of the special
       aspects inherent in health care relationships (i.e. not purely
       commercial, but also interpersonal and ethical dimensions to be
       considered).

Overall:
   No false misleading or deceptive advertising.
   No discounts, gifts or inducements.
   No endorsements or testimonials.
   No disparagement of other professionals.
   No ads for service that is known to or likely to cause harm.
   No ads for expertise not actually held.

Commercialisation of Medicine

Problems with commercialisation of medicine:
    Vertically integrated medical services may encourage over-servicing →
      such over-servicing strains health budget eg. same company owns
      GP, radiology, pathology etc.
    Risk of dominance of commercial over altruistic values → medical care
      becomes a product.
    Consumer demand (which may be encouraged by commercialisation)
      encourages over-servicing → advertising creates demand for medical
      services (wants instead of needs).
    Commercial practices encourage increasing demands widening the
      scope of medicine.
    Market model of health service provision creates inequities in service
      provision → possibly creates a multi-tiered health care system where
      some can afford optimum health care and others can‟t (erodes justice).
    Desire for profits reduces expenditure on health → incentives to limit
      investigations/treatments which may not be very profitable (failure to
      give best duty of care).
    Shift in clinical autonomy → doctor making decisions for reasons other
      than patient interest.

Benefits of deregulation and advertising:
   Cost efficiencies.
   Reduction in medical monopolies.
   Better information provision for patient decision making.
   Advertising reduces medical paternalism.
   Protection against unfair trading.




                               Page 30 of 54
Author: Brad Robinson                                             MBBS IV, 2004


(12). ETHICAL AND LEGAL ISSUES IN TREATING PSYCHOSIS

Psychosis clearly has an impact on higher cognitive functions.
    This impacts upon issues relating to informed consent to treatment.

In special circumstances people affected by mental illness will also be
considered to lack the capacity for rational decision making → this of often a
temporary rather than an ongoing state.

Consent to treatment affected as:
   Acute psychosis, while mostly transient, can dramatically alter
     judgement and interpretation of both external events and internal
     experiences.
   Patient may withhold consent not due to rational decision making but
     due to a delusion that harm is meant to them by the treatment.

In these circumstances must weigh the civil liberties of the individual patient
against their own welfare and the peace of mind of the community and
consider:
     The impact of not treating on both the patient and the wider community.

Legal framework for making such decisions provided in Queensland by the
Mental Health Act 2000 which came into effect in 2002 (this superseded the
mental health act 1974).
    It is a judgement call as to whether a mental illness is of a nature or
       degree that warrants detention.
    The applicant must exercise some judgement as to whether or not the
       welfare of the patient will be served by a hospital admission → this is
       further clouded by the emergence of community based acute care
       facilities.
    The new 2000 act makes an attempt to define mental illness.
    The 2000 act also introduces a much tougher requirement for
       involuntary assessment and treatment.
    The 2000 act also requires that consideration be given to making
       assessment or providing treatment in a less restrictive environment.

General effect of the 2000 Act:
   Requires that involuntary treatment takes place in an environment that
     ensures that the patient is adequately informed and that allows
     opportunity for collaboration.

The Mental Health Act 2000

Contains provisions for:
   Initiating involuntary assessment of persons with a mental illness.
   Authorising involuntary treatment of those persons.
   Independent review of involuntary treatment and patient rights.




                                Page 31 of 54
Author: Brad Robinson                                               MBBS IV, 2004


Mental illness as defined by the act:
      “A condition characterised by a clinically significant disturbance of
      thought, mood, perception or memory”.
   But there are also 11 exclusions from the definition, including
      behaviours, conditions or circumstances that cannot, on their own, be
      considered mental illness → e.g. a person‟s race, previous treatment
      for mental illness or antisocial or illegal behaviour.

Involuntary Assessment

Two assessment documents must be made before a person can be assessed
without their consent.
    1. Request for assessment:
          o Can be made by any adult who, having seen the person within
               the last 3 days, believes the person has a mental illness of a
               nature or to an extent that involuntary assessment is necessary.
    2. Recommendation for assessment:
          o Can be made by any doctor or an authorised mental health
               practitioner who has examined the person in the last 3 days.
          o The doctor or authorised mental health practitioner must be
               satisfied that all of the involuntary assessment criteria apply (see
               below).
          o The recommendation is effective for 7 days.
          o Different people must make the request and recommendation.
          o The person making the request cannot be a relative or employee
               of the person making the recommendation.

Criteria for Involuntary Assessment (s13):
    The person appears to have a mental illness;
    The person requires immediate assessment;
    The assessment can properly be made at an authorized mental health
       service;
    There is a risk that the person may:
           o Cause harm to himself or herself or someone else; or
           o Suffer serious mental or physical deterioration;
    There is no less restrictive way of ensuring the person is assessed; and
    The person:
           o Is lacking the capacity to consent to be assessed; or
           o Has unreasonably refused to be assessed.

Involuntary Assessment – What happens next?:
    A health practitioner or an ambulance officer can take the person to an
      authorised mental health service for assessment → police are not
      automatically involved in this process but their assistance must be
      provided if requested.
    If there are problems making the assessment documents, e.g. the
      request and recommendation cannot be made because the patient is
      uncooperative, violent or on the run then:
          1. A justice‟s examination order may be made by a justice of the
             peace (qualified) or magistrate → this empowers a doctor or


                                 Page 32 of 54
Author: Brad Robinson                                               MBBS IV, 2004


              authorized mental health practitioner to go to where the person
              in the order is located and conduct an examination to decide if a
              recommendation for assessment should be made.
          2. An emergency examination order can be made by a police
              officer, ambulance officer or a psychiatrist when strict criteria are
              met.
      An emergency examination order authorises a person to be taken to an
       authorised mental health service and be detained for up to 6 hours to
       determine if the assessment documents can be made (by a doctor or
       authorised mental health practitioner).

At this point the person becomes an involuntary patient → this means they
may be assessed without their consent.
     They can nominate an allied person to help represent their views, and
        have access to a health practitioner or legal adviser of their choosing.
     The person may be detained at the authorised mental health service for
        up to 24 hours → this can be further extended by an authorised doctor
        for further periods of up to 24 hours.
     The maximum period for assessment is 72 hours, with the time
        calculated from the time the patient is accepted on arrival at the mental
        health service place.

The purpose of involuntary assessment is to determine if the person requires
involuntary treatment.
    If all of the criteria apply, an involuntary treatment order can be made to
      authorise the involuntary treatment of a person (see Involuntary
      Treatment below).

Involuntary treatment

An involuntary treatment order can be made if an authorised doctor is satisfied
that all the criteria for involuntary treatment apply.

Criteria for Involuntary Treatment (s14):
    The person has a mental illness;
    The person‟s illness requires immediate treatment;
    The proposed treatment is available at an authorised mental health
       service;
    Because of the person‟s illness:
           o There is an imminent risk that the person may cause harm to
               himself or herself or someone else; or
           o The person is likely to suffer serious mental or physical
               deterioration.
    There is no less restrictive way of ensuring the person receives
       appropriate treatment for the illness; and
    The person:
           o Lacks the capacity to consent to be treated for the illness; or
           o Has unreasonably refused proposed treatment for the illness.




                                 Page 33 of 54
Author: Brad Robinson                                                MBBS IV, 2004


In all cases involuntary treatment must be authorised or confirmed by a
psychiatrist.
     On making an involuntary treatment order, an authorised doctor must
        specify the category of the order: in-patient or community.

The involuntary treatment order must be accompanied by a treatment plan
that outlines the:
    Proposed treatment.
    Treatment frequency.
    Method and place of treatment.
    Rehabilitation and other services to be provided.
    Intervals for regular assessment.

The treatment plan must, as far as it is practical, be discussed with the
patient.

Duration of involuntary treatment:
   An involuntary treatment order does not need to be renewed.
   However, an authorised doctor, the Director of Mental Health or the
      Mental Health Review Tribunal can revoke an involuntary treatment
      order at any time.
   Regular reviews are conducted by the psychiatrist as outlined in the
      treatment plan.
   In addition, reviews by the Mental Health Review Tribunal occur within
      6 weeks of an involuntary treatment order being made and then at 6
      monthly intervals or on application.

Advance Health Directives

In the absence of informed consent involuntary admission by regulation is the
most common means by which treatment is provided.
     However, the Powers of Attorney Act 1998 also makes a number of
       provisions for arranging for consent in advance.

The Powers of Attorney Act could be applicable for people with psychotic
illnesses who, while well, could write an advance directive that:
      Covers the situation of clinical deterioration requiring hospitilisation for
       treatment.
      Incudes specific advice regarding authorised action in the situation of
       treatment.

Question arises if the clinician‟s view is in conflict with the advance health
directive → eg patient outlines that ECT is not to be used, but clinician
determines it is in the patient‟s interests to have it done.
     Powers of Attorney Act attempts to ensure that the expressed wishes
        of the patient are taken into account, but says that when these are
        inconsistent with the Mental Health Act the Mental Health Act prevails.




                                  Page 34 of 54
Author: Brad Robinson                                             MBBS IV, 2004


As disorders such as schizophrenia affect higher cortical function even
outside of the times of acute episode, another question arises in relation to the
patient‟s capacity to provide informed consent generally.
    Again, if the advance health directive is in conflict with the Mental
       Health Act the Mental Health Act will prevail.

Safeguards:
    Mental Health Acts must have safeguards to ensure that patients cannot
be detained on the opinion of one person alone AND their detention is
regularly reviewed.
    The 2000 Act has more stringent safeguards to better protect patient
rights → ensures that involuntary treatment takes place in an environment
where the patient is adequately informed, and has the opportunity to
collaborate and have better access to Review processes.




                                 Page 35 of 54
Author: Brad Robinson                                            MBBS IV, 2004


(13). PROFESSIONAL REGULATION & THE QLD MEDICAL BOARD

The medical profession in Queensland is regulated under the Health
Practitioners (Professional Standards) Act 1999.

The objectives of the legislation are to:
    Protect the public by ensuring health care is delivered in a professional,
      safe and competent way.
    Uphold the standards of practice within the health profession.
    Maintain public confidence in the health professions.
    Provide a uniform system to deal with complaints, investigations, and
      disciplinary proceedings relating to registrants and the management of
      impaired registrants.
    To provide a system of complaints about registrants.

The link between EBM and Self-Regulation

“The Evidence Based Health Care Loop”

                   Identify and evaluate a health problem
                                       ↓
                        Search for the best evidence
                                       ↓
                      Sufficient evidence for practice?
                       ↓                              ↓
                     Yes                              No
                       ↓                              ↓
       Develop clinical practice guidelines ← RCT or other research
                       ↓
      Implement clinical practice guidelines
                       ↓
         Back to start and identification

The Medical Board of Queensland

Role is to protect the public by ensuring that health care is delivered in a
professional, safe and competent way and upholds the standards of practice
within the profession.

Made up of Chief Health Officer and 6-10 other appointed members:
   Three members nominated by the minister.
   Three members nominated by the AMA (registrant members).
   One consumer/public representative.
   One barrister or solicitor of the Supreme Court.
   A majority of members must be registrants.




                                Page 36 of 54
Author: Brad Robinson                                            MBBS IV, 2004


Under the Health Practitioners (Professional Standards) Act 1999 the medical
board deals with:
   i. Registrations.
  ii. Complaints.
 iii. Health assessment and monitoring.

(i). Registrations:
      Assess, register and monitor practitioners.
      Promote high standards among registrants.
      Provide training and continuing education activities.
      Liaise with universities re medical education.
      Accredit intern training hospitals.
      Registration process:
           o Written application.
           o Prescribed fee.
           o Assessment by board of qualifications, fitness to practice,
               recency of practice.
           o Board may require examination and/or medical.
      Types of registration include:
           o General.
           o Provisional.
           o Specialist.
           o Special purpose.

(ii). Complaints:
      Receives complaints and consult with the health commissioner about
        them.
      Complaints may include:
           o Sexual assault.
           o Sexual relationship with a patient.
           o Inappropriate touching of a patient.
           o Sexual harassment of staff.
           o Financial connections/exploitation of patients.
           o Participating in criminal activity not connected to patients.
      Immediately suspend or impose conditions if the registrant poses an
        imminent threat to the wellbeing of vulnerable persons.
      Conducts investigations either of complaints or of its own initiative.
      Discipline through advising, cautioning and reprimanding.
      To bring before a Health Practitioners Tribunal cases where
        suspension or deregistration is a likely outcome.
      To bring other disciplinary matters before a Professional Conduct
        Review Panel.

(iii). Health Assessment and monitoring:
      Assesses and monitors practitioners who have suffered from an illness
        that impacts on their professional performance.
      Referrals to this program can come from treating doctors, colleagues,
        employers, patients, drug dependence units, and the impaired doctors
        themselves.


                                Page 37 of 54
Author: Brad Robinson                                           MBBS IV, 2004


      Assists practitioners to stay in the workforce wherever possible.
      Non-punitive rehabilitation with professional support.
      May involve participation in the board‟s Urine Drug Screening program
       which monitors abstinence and prevents relapse.
      If board suspects impairment they can:
           o Seek additional information but not compel its delivery by the
               doctor in question.
           o Invite the doctor to attend a health assessment with a mutually
               agreed practitioner but not compel it.
      If a registrant is impaired the board can:
           o Enter into undertakings → supervised practice, workload
               limitation, regular medical review, urine drug screen program.
                    These undertakings are usually for a period of 3 years.
           o Apply conditions → revoke schedule 8 prescribing restrictions.
           o Refer for hearing by the Professional Conduct Review Panel or
               the Health Practitioners tribunal.
           o Take no further action.

Health Practitioners Tribunal:
   Hear cases where suspension or deregistration is a likely outcome.
   Any one District Court judge constitutes the tribunal and is assisted by:
         o One assessor from the public panel.
         o Two assessors from the professional panel.
   Outcomes may include:
         o Advice, caution, reprimand.
         o Enter into an undertaking.
         o Suspension.
         o Deregistration.
         o Imposition of a fine.

Professional Conduct Review Panel:
    Hear other disciplinary matters (not those likely to end in suspension or
      deregulation.
    At least 3 and not more than 4 members:
         o Two from professional panel of assessors.
         o One from public panel of assessors.
         o Possibly a lay member of board or another member from either
            panel.
    Outcomes may include:
         o Advice, caution, reprimand.
         o Enter into an undertaking.
         o Impose conditions.




                                Page 38 of 54
Author: Brad Robinson                                              MBBS IV, 2004


Functional Similarities of the School of Medicine and the Medical Board

The school of medicine‟s personal and professional development support and
assessment processes mirror the functions of the Medical Board of
Queensland in the following ways:

   1. The SOM PPDSA seeks to assess patterns of behaviour, impairment
      and professionalism amongst students in order to prepare them for
      professional life.
      The medical board assesses clinical competence, physician
      impairment, and unprofessional conduct of doctors in order to
      protect patients, to uphold standards of practice, to protect the integrity
      and public perception of the profession, and to set up a uniform system
      to deal with complaints.

   2. The SOM PPDSA responds to complaints from PBL tutors and clinical
      tutors in relation to the conduct of the students.
      The Medical Board responds to complaints about members from other
      doctors, from patients, from the media, or they may investigate
      anything suspect or untoward on their own initiative.

   3. The SOM PPDSA assesses complaints by interviewing the student by
      a board including the chair of the EPPD domain, an (academic)
      psychiatrist, and a UQMS representative.
      The Medical Board is more complex, the board itself being the Chief
      Health Officer with 1-10 other members. Cases are then referred to a
      Health Practices Review Tribunal if suspension/deregulation is a likely
      outcome, or a Professional Conduct Review Panel for other disciplinary
      matters.
      N.B. → the Medical Board and other panels often contain lay members,
      unlike the SOM PPD SA panel.

   4. A SOM PPDSA assessment commences by explaining the process to
      the student, reading the reported complaint, allowing the student to
      respond, then identifying the problem areas, negotiating management
      to fix them (remediation, support) and setting a process to monitor
      progress.
      The Medical Board can initiate an immediate suspension or
      deregulation if the problem is serious enough and the patients are at
      risk. Otherwise, the Professional Conduct Review function by
      disciplining members through advising, cautioning or reprimanding, and
      setting up monitoring procedures.




                                Page 39 of 54
Author: Brad Robinson                                            MBBS IV, 2004


(14). IMPAIRED DOCTORS – ETHICAL RESPONSIBILITIES

Common causes for impairment in doctors:
  1. Misuse of drugs or alcohol: Estimated that 7-8% of doctors suffer from
     significant alcohol abuse and possibly 1% from severe narcotic drug
     abuse, with some multiple substance abusers.
  2. Physical disorders that substantially affect capacity to practice: Stroke,
     Parkinson‟s disease, Alzheimer‟s disease, physical injury.
  3. Psychiatric disorders: Depression, anxiety, panic attacks, bipolar
     disorder, obsessive-compulsive disorder, suicide → depression is a
     significant problem for doctors.
  4. Age-related impairment.

Other problems for Doctors:
    Disillusionment.
    Resentment.
    Social isolation.
    Uncertainty and insecurity in their work.

Problems during medical school:
    High levels of psychological distress.
    Rites of passage.
    Medical culture.
    Personal expectations.
    Experiences as a student.

Features of Doctor‟s behaviours:
    Conscientious.
    High expectations.
    Competitive.
    Guilt and responsibility.

Why Doctors avoid asking for help:
   Doctor‟s expectations they should not need help.
   Belief they should be able to sort out their own problems.
   Fear of stigmatisation.
   Misinterpreting symptoms eg focussing on physical rather than
     psychological problems.

General:
   Until relatively recently, doctors were often automatically deregistered if
     they were found to be misusing drugs or alcohol.
   Reluctance to present with drug, alcohol or psychiatric problems
     because of shame, embarrassment or fear of deregistration is
     common.
   Colleagues of impaired doctors are not always willing to provide
     support, encouragement and help.




                                Page 40 of 54
Author: Brad Robinson                                            MBBS IV, 2004


During the 1980s a different attitude to the impaired doctor began to evolve in
Australia, away from punitive approaches and professional isolation towards
rehabilitation and professional support.
    Various state Medical Boards established special committees for
       dealing with impaired doctors, and other groups such as doctors‟ health
       advisory services (DHAS) were developed.
    Australian medical boards now emphasise treatment and rehabilitation,
       where possible, for doctors who are ill or drug dependent and hence
       impaired.

Such impaired practitioner programs usually encompass:
   1. Assessment by an independent relevant specialist.
   2. Negotiation of appropriate conditions on practice to ensure both
      community protection and support for the doctor during treatment and
      rehabilitation.
   3. Medical supervision, regular urine testing and appropriate conditions on
      practice for drug dependant doctors.

Medical boards have taken a major role in dealing with physically or mentally
impaired doctors for the following reasons:
    Ensure optimal patient care → meet their duty of care.
    Maintain community confidence in the profession which could be
      compromised by impaired doctors improperly treating patients.
    To provide a uniform system of dealing with complaints, investigations
      and disciplinary proceedings relating to doctors and to manage
      impaired doctors.
    Medical boards have moved away from a framework of punitive action
      to a framework of support and assistance.
    Recognition of the unique demands of the profession and the way in
      which these demands can precipitate impairment.

Difficult issues can arise in relation to ageing doctors, psychotic doctors
lacking in insight and drug dependency with extreme denial.
     Rehabilitation results are encouraging, but the profession needs to do
        more in prevention, early detection and provision of high speciality
        treatment and rehabilitation.

DHAS:
   The doctors‟ health advisory services (DHAS) act as a point of first
     contact for a sick doctor or, more frequently, a concerned relative,
     employee, or colleague of a doctor with a problem.
   Offers confidential, independent, advisory voluntary and fee free
     service.
   Has a 24/7 On-Call page.
   GP on call phone assessment.
   Where telephone advice is not enough, the counsellor will attempt to
     get the sick doctor into a treatment situation.
   Thereafter the counsellor‟s role becomes one of supporter, mentor, or
     case manager, as is appropriate.


                                Page 41 of 54
Author: Brad Robinson                                               MBBS IV, 2004




Ethical dilemmas may emerge for the reporting doctor, the treating doctor, and
the doctors‟ health advisory service.
    Reporting doctor‟s dilemmas:
           o Loyalty to friend or employer vs awareness of risk to patients if
              problem not addressed.
           o The Australian ethic of “not dobbing on a mate” vs the ethical
              requirement of upholding the integrity of the medical profession.
    Treating doctor‟s dilemma:
           o What if the impaired doctor who is in treatment is still practising,
              when, in the opinion of the treating doctor, he or she may not be
              fit to practise but refuses to follow the treating doctor‟s advice.
           o Doing nothing respects the ethical requirement for confidentiality
              but ignores the danger to others → to report breaks
              confidentiality (and incurs possible legal liability) to protect
              unknown patients perceived to be at risk.
    Doctors‟ health advisory service dilemma:
           o Faced with knowledge of serious impairment, and a refusal by
              the sick doctor to acknowledge this or to adequately pursue
              treatment, and an awareness of the risk to patients, should a
              doctors‟ health advisory service also forgo its commitment to
              confidentiality and perhaps lose credibility and viability within the
              profession?

As in other States, the Medical Board of Queensland may appoint a
committee of assessors (appropriately medically qualified) to determine a
doctor‟s medical fitness to practise medicine, if it comes to the notice of the
Board that that person may be unfit.




                                 Page 42 of 54
Author: Brad Robinson                                          MBBS IV, 2004


(15). SECOND OPINIONS

Examples of second opinions:
    Request from patient:
        o Dissatisfied.
        o Mistrustful.
        o Wanting more information.
        o Anxious.
        o Unwilling to “wait-and-see”.
    Specialist/second GP after routine referral from GP.
    A different specialist after a second referral from GP → GP is
     dissatisfied/mistrustful/wants more information.
    Court requests expert testimony in a case of medical negligence.

Therefore consider requests as arising from a range of motives → don‟t
automatically be defensive where a patient requests a second opinion.

      Second opinions: Economically as well as morally defensible (as
       opposed to doctor shopping, which is not).
      Request for immediate referral where GP is competent to act 
       unreasonable (cost, deskilling, continuity of care).

AMA Code of Ethics (1996): “upon request by your patient, make available to
another doctor a report of your findings and treatment.”




                               Page 43 of 54
Author: Brad Robinson                                             MBBS IV, 2004


(16). IMMUNISATION – ETHICAL ASPECTS

Consent and rights

 Analogies with normal consent              Differences
 Information provision prior to             Parent makes the decision on behalf of the
 vaccination                                child
 Discussion of concern                      Adult's autonomy v child's rights to protection:
 Dismissive attitude reduces                who judges?
 immunisation rates                         Risk perception by parents
                                            Compulsory vaccination to prevent harm?

Risk perception:
    Risks may seem more real than advantages.
    Risks more visible than disease when vaccination rates high.
    Perceived low risk of illness, even if not immunised.
    Parents' risk-averse in relation to their own children.

Individuals and the community:
    Herd immunity  requires high vaccination rates. Where this exists,
       unvaccinated people get benefits without risk.
    Herd immunity  type of common good. ?obligation to contribute to
       common good. ?failure to immunise  harm others.
    Failure to immunise: best considered a failure to benefit or a direct
       harm?

Arguments for harm: Protection seen as a basic right; choosers v non-
responders; exclusion on medical grounds; exclusion by
access/disadvantage.

Paradox: Everyone should be vaccinated except me.
    Doesn't work if everyone acts thus  moderate self-interest.
    Where non-immunised people get sick, they are a burden to the
      community  compulsion if necessary.

Compulsion: With exemptions for medical, religious or personal/philosophical
reasons is practiced (eg in some US states).
    Compulsory choice is practiced in some Australian states and NZ.
    Incentives/coercion: incentives to doctors; linked Commonwealth
      benefits; ? punitive  economic bias?




                                  Page 44 of 54
Author: Brad Robinson                                            MBBS IV, 2004


(17). DELIVERING BAD NEWS

Essentials:
    Ensure you have the correct person and established the correct
      relationship.
    Be aware of cultural and language differences.
          o Try to involve a person who can act as a liaison officer or a
             bilingual family member, friend or neighbour.
          o Cultural issues may also influence the manner in which the
             message is delivered to whom it is to be delivered and the
             reactions that are considered acceptable.
    Provide accurate info in simple terms in a slow and gentle manner.
          o Shock may make it difficult for people to accurately take in the
             news that they are being given.
          o Messages that are received at the time of being given bad news
             can become fixed and difficult to shift later on.

Practical steps:
    Select an appropriate environment in which to deliver the news →
       private and quiet.
    Indicate to the person before the consultation that you have important
       issues to discuss at the next appointment and see if they want to bring
       family members or friends.
    Ensure that you have adequate time and aren‟t rushed or forced to
       depart early.
    Always ask the person involved if they have heard any news or know
       the reason for the consultation.
    Look directly at the person.
    Give the information a little at a time.
    Use simple language and avoid technical jargon.
    Be guided as to what information the person can accommodate by
       supplying information that they request.
    Use short sentences and take a break between sentences.
    Be comfortable with silence.
    Constantly check that the person has understood what you have said
       even if you have to get them to repeat it back to you.
    Bear in mind that there are some very important things that people
       want to know → so give time for questions:
           o Did they die quickly? Did they suffer?
           o Was anyone with them when they died?
           o Did they know I loved them?
           o Did they say anything about me?
    Be prepared for any and all reactions.
    Be aware of children → their reaction is influenced by:
           o Their level of understanding.
           o The reactions of those closest to them.
    Sad news should always be accompanied by positive support,
       understanding and encouragement.
    Avoid false reassurance.


                                Page 45 of 54
Author: Brad Robinson                                              MBBS IV, 2004


(18). MEDICAL CERTIFICATES

Medical practitioners play a vital role in the issuing of certificates. The
provision of accurate certificates is important for several practical reasons:
    Control infectious diseases and maintain public health.
    Ensure government systems of social security and workers
       compensation are conducted fairly and efficiently.
    Ensure the proper workings of superannuation schemes and various
       industrial awards (including sick leave entitlements).
    The granting and enforcement of insurance policy entitlements.
    Enable the accurate registration of births and deaths.
    Proper conduct of coronial enquiries, burials, cremations,
       transplantation procedures and post-mortem and anatomical
       investigations.
    Proper detention of people under the provisions of the mental health
       legislation.

Society licences medical practitioners to issue medical certificates across a
range of areas because of its trust in them to make judgements based on their
expertise and professional integrity.
    As judgements certificates manifest the considerable social power
       which society invests in doctors.

Legal Considerations

MP‟s must ensure any certificate is entirely accurate → when this can‟t be
done the nature of any uncertainty must be expressed in the certificate.

      Signing of a false certificate may render the MP liable to an action in
       negligence.
      When the false certificate is signed knowingly the MP is liable for the
       further tort of deceit and may have committed a statutory criminal
       offence.
      Proceedings for professional misconduct would likely be initiated if
       either of the above occurred.

Guidelines for sickness certificates → they must:
    Be legible.
    Be written on the doctor‟s letterhead stationery or an appropriate
      certificate form bearing the doctors name and practice address.
    Not contain abbreviations or medical jargon.
    Be based on facts known to the medical practitioner.
    Indicate the date on which the examination took place.
    Include the degree of incapacitation of the patient.
    Include the date on which the patient is likely able to return to work.
    Be addressed to the party for whom the certificate is intended.




                                 Page 46 of 54
Author: Brad Robinson                                            MBBS IV, 2004


Other considerations:
    They can NEVER be backdated or post-dated to correspond with an
      existing or proposed absence from work.
    Patients may request doctors withhold certain information regarding the
      diagnosis → this right to confidentiality must be respected however the
      patient should be advised that the information on the certificate may not
      be enough to attract sick leave.
    If the medical certificate is issued after the patient took leave it must:
          o State the date of the examination.
          o State whether it is founded on findings of the examination or on
              the information provided by the patient which the medical
              practitioner accepts as true.
          o Cover the period during which the medical practitioner believes
              the illness would have incapacitated the patient.
    MP‟s may be requested to state whether a patient could return to work
      with altered duties → in this case the general nature of duties which
      should not be undertaken should be noted on the certificate.




                                Page 47 of 54
Author: Brad Robinson                                            MBBS IV, 2004


(19). RELATIONSHIP B/W DOCTORS & PHARMACEUTICAL INDUSTRY

General:
   Pharmaceutical industry has made major contributions to patient care
     and to medical research and to the support of postgraduate and
     continuing medical education in Australia.
   The pharmaceutical industry, like physicians, is engaged in treatment
     of disease and conduct of research directed toward improvements in
     treatment.
   Important to recognise that in the relationship between the physician
     and the pharmaceutical industry the physician is the target of the
     advertising and promotional activities of the industry yet is not the
     consumer of the product.
         o Rather, the physician acts as the agent of the consumer, and
            this relationship is enforced by laws governing the prescribing of
            drugs.
   Guidelines for interactions between doctors and this industry are
     necessary.

Overriding objective:
   Any benefit in cash or in kind, any hospitality or any subsidy received
       from a pharmaceutical company must leave the physician‟s
       independence of judgement manifestly unimpaired.

Pharmaceutical Sponsored Travel

Most appropriate way for industry to provide sponsorship is through
independently organised scientific meeting.

Sponsorship may be offered to individual physicians to travel to a meeting in
which they are already involved as speaker or chairman.
    Where this is for a reputable meeting (eg scientific meeting of specialist
       society) and where the sponsorship arrangement has been made by
       meeting organisers this sponsorship is seen to recognise the standing
       of the individual and has the full support of the college.
    Rules:
           o Actual payment should be made to the physician by the
               organisers of the meeting, not by the company.
           o The sponsorship should be acknowledged.
           o The sponsorship should be at a reasonable level as judged by
               meeting organisers.

Sponsorship may be offered to an individual who is already involved as
speaker or chairman, independent from the organising committee of the
meeting.
    This is usually inappropriate.

Particular care should be taken for meetings which are not regular meetings of
specialist societies, especially where the meetings are sponsored by a
company and there is no independent organising committee.


                                Page 48 of 54
Author: Brad Robinson                                            MBBS IV, 2004


      Invitation would arise from the companies belief the physician would
       make a contribution to their benefit (not independent).
      Lack of an independent organising committee would call into question
       the independence of the speaker.
      These considerations usually prohibit such involvement.

Attendance at a meeting at which the physician is not making a formal
contribution:
    Seldom acceptable for sponsorships to be offered for an individual
       physician to attend a meeting at which they are not making a formal
       contribution.
           o Such support would normally involve a quid pro quo.
           o If acceptance seems reasonable sponsorship should be public
              knowledge.
    Sponsored travel of a group of physicians to meetings in which they are
       not contributing is generally a promotional activity by the company
       involved.
           o Group participation does not absolve individuals from their own
              ethical responsibilities.
    Sponsorship to meetings with spouse or significant other is so open to
       abuse if can never be justified if company bears the costs of travel or
       other expenses for them.

Support for Meetings and Other Educational Activity

Where support of pharmaceutical companies is sought, the college involved
should try and be even handed and not favour one over another.

Where the supporting company selects and sponsors the speaker and the
meeting:
   Supporting company should send out the invite in its own name.
   Supporting company should supply the venue for the meeting.
   Supporting company should support the speaker and meet other costs.
   Should not purport to be an activity of the College.
   The College can provide information through the College if the subject
      is likely to be of interest to a significant number of fellows.

Where the pharmaceutical company offers to provide a speaker for a meeting
primarily organised by the College:
    Overriding principle is that any meeting sponsored by the College must
       have the program arranged by the College.
    It may be appropriate for the company to further support the meeting
       (eg payment of venue) but such support must be mad clear on all
       invites and publicity for the meeting.

Gifts to Physicians

      Gifts include not only discrete items but also payment for dinners and
       other expenses associated with daily living.


                                Page 49 of 54
Author: Brad Robinson                                            MBBS IV, 2004


      Physicians must judge for themselves what is and is not acceptable but
       should err on the side of rejecting gifts.
      Service gifts, eg patient hand-outs, may on occasion be acceptable.
      Non-service oriented items should in general not be accepted.
      Pay particular care to trend of lavish dinners disproportionate to the
       content of physician‟s involvement.

Samples

Provision of samples is rarely an altruistic exercise by the company involved.
    Usually a marketing exercise to accustom doctor to prescribing a
       certain product or to establish a cohort of patients on long-term
       treatment with a particular drug.

The choice of pharmaceutical agent used to treat a patient must not be
influenced by the presence of a sample.
     In general, samples should not be accepted.




                                Page 50 of 54
Author: Brad Robinson                                             MBBS IV, 2004


(20). ABORTION

What issue most determines the rights and wrongs of abortion?
   Women‟s rights issue → the right to control their own body; or
   A foetuses right to life → killing a human being.
   No simple answer → possibly lies somewhere between these two.

Abortion is a criminal offence in all states except WA.
   Abortion is prosecuted under criminal law and not civil law (where
       compensation is being sought).

Queensland Criminal Code:
   “Any person who, with intent to procure the miscarriage of a woman,
     whether she is or is not with child, unlawfully (“unlawfully” implies a
     possibility of lawful abortions) administers to her or causes her to take
     any poison or other noxious thing, or uses any force of any kind, or
     uses any other means whatever, is guilty of a crime, and is liable to
     imprisonment with hard labour for fourteen years.”
   Women attempting to procure their own miscarriage → 7 years
     imprisonment.
   Supply or procurement of any thing → 3 years.
   Purposes of abortion law are to:
        o Protect life.
        o Protect mother‟s health from induced abortion.

Lawful Abortion in QLD

Possible statutory protection is offered by s282 against criminal proceedings
for procuring abortion.
     “A person is not criminally responsible for performing in good faith and
       with reasonable care and skill a surgical operation upon any person for
       his benefit, or upon an unborn child for the preservation of the mother‟s
       life, if the performance of the operation is reasonable, having regard to
       the patient‟s state at the time and to all circumstances of the case.”
     An unlawful termination of pregnancy attracts the same criminal
       sentence regardless of the gestational age at which the termination
       occurs.

There is some doubt as to the application of s282. Common Law supports
abortion. Currently in QLD:
    s282 does provide a defense to abortion.
    The Menhennit rules are accepted in law → i.e. the principles of
       necessity and proportion. For abortion to be legal the accused must
       have honestly believed on reasonable grounds that the act done by him
       was:
          o Necessary to preserve the woman from a serious danger to her
             life or her physical or mental health (not being merely the normal
             dangers of pregnancy and childbirth) which the continuance of
             the pregnancy would entail.



                                Page 51 of 54
Author: Brad Robinson                                              MBBS IV, 2004


          o   In the circumstances not out of proportion to the danger to be
              averted
      Serious danger to (mental) health now extends beyond birth → but ?
       only in cases of seriously affected foetuses e.g. malformation)
      There is no direct application of conditions other than harm to the
       mother‟s physical or mental health (such as social or economic factors)
       either during or beyond pregnancy, but some doubt remains.
      To be found guilty the Crown must prove that the doctor did not
       honestly believe there was necessity and the act wasn‟t out of
       proportion → this is difficult for Crown to establish.

Does right to abortion on demand exist in QLD?
   There is difficulty in prosecuting doctors because of the need to prove
      that:
         o The doctor did not believe on reasonable grounds that abortion
             was necessary (i.e. the doctor did not believe that it was lawful)
             → this is a subjective assessment.
         o The risk was out of proportion to that of continuing pregnancy.
   Proving both of these beyond reasonable doubt, which is the criminal
      standard, is almost impossible.

Viewpoints on Abortion

Conservative: Views the foetus to have the same rights as a person and that
abortion infringes on the right to life of the person the foetus will become.
    More moderate conservatives believe that foetuses have basic human
       rights but make exceptions in which abortion is morally justified (e.g.
       rape, foetus is a risk to Mother‟s life). However, this does not hold with
       the conservative view that a foetus has the same rights as any other
       individual. Why should the foetus pay with its life because what
       someone else did or what might happen to someone else?

Liberal: Views that a foetus is not a person with a right to life as a foetus
doesn‟t have a concept of continuing life, thus, abortion is not an infringement
on the right to life of the person the foetus will become since there is no
particular person the foetus will become.
    Liberals accept abortion but advocate methods based on least harm to
       the foetus.
    Liberals also base necessity of abortion on harms which may accrue to
       the actual person the foetus will become if born (e.g. Genetic
       abnormality).
    This means that liberals believe the foetus has a right not to be harmed
       but doesn‟t have the right to life.

Intermediate: Abortion is morally serious but not always wrong.
    The foetus may not have a strong right to life but its life has significant
      value → that is they have a serious right to life but not an absolute one.




                                 Page 52 of 54
Author: Brad Robinson                                                        MBBS IV, 2004


Professional obligations concerning abortion

A doctor must have:
    An honest belief concerning harm to woman‟s physical or mental
      health, according to the definitions provided for by law.
    An honest belief that termination is not out of proportion to danger to be
      averted.
    There is now also an increased emphasis on informed consent

If a doctor has moral objections to termination of pregnancy:
     They have no obligation to perform it
     They must inform the patient of their situation but they should assist,
       advise and refer.

As an aside:
    A doctor has no right to legally intervene to enforce certain behaviour
      or abstinence from certain behaviour by a pregnant woman against her
      will in the interests of the foetus she is carrying.
    However, a child born with a medical problem resulting from harm
      sustained during pregnancy is legally entitled to bring a legal action
      against his/her mother.

**Special thanks to the Greggstone who kindly prepared this chapter on abortion – Editor.




                                      Page 53 of 54
Author: Brad Robinson                                              MBBS IV, 2004


(21). HUMAN RESEARCH ETHICS COMMITTEES (HRECs).

Obligations of HRECs

The two primary obligations of Human Research Ethics Committees are:
   1. The primary purpose of an HREC is to protect the welfare and rights of
      participants in research.
          This includes the need to ensure that every patient, including the
              control group, should be assured of the best proven therapeutic
              method.
          It is the primary responsibility of each member to decide
              independently whether in their opinion the conduct of each
              research proposal submitted to the HREC will so protect
              participants.
   2. To ensure that research proposals conform to the principle laid down in
      the NH&MRC National Statement on Ethical Conduct in Research
      Involving Humans 1999.
          This involves analysing study design, funding, conflicts of
              interest, monitoring, risks and benefits, consent and
              confidentiality.

The important but secondary obligation is to facilitate research that is or will
be of benefit to the researcher‟s community or humankind.

How HRECs Discharge These Responsibilities

How HREC‟s discharge these responsibilities:
  1. Consider ethical implications of research proposals and determine
     whether they are acceptable on ethical grounds.
  2. Monitor selected projects as they progress to ensure that they continue
     to meet ethical standards.
  3. Maintain a record of all accepted research proposals.
  4. Establish and maintain communication with their governing body, the
     NHMRC ACEH Australian Health Ethics Committee, providing them
     with details/records as requested.




                                 Page 54 of 54

				
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