Tumbos Ethics & Law v2

Tumbos Ethics & Law for 1st

& 2nd

yr Med

1

For 1st

& 2nd

yr Med

(I could put in this huge disclaimer regarding the accuracy of notes and how

these things change and the like but instead Ill just leave it to your discretion

note that these are frameworks particularly aimed at giving all the relevant

information required for the major topics of the yr)


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Contents

1st

Year

1. Court System pg. 4

2. Negligence pg. 5

3. Emergency Medical Treatment pg. 6

4. Consent pg. 6

5. Competency pg. 7

6. Involuntary Admission pg. 9

7. Hierarchy of Decision Making pg. 9

8. Medical Regulation pg. 10

9. Abortion pg. 11

10. Transplantation pg. 12

11. Dr-Pt Relationship pg. 13

12. Aged Care Assessment Teams pg. 14

13. Certification pg. 15

14. Models of Illness pg. 16


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Contents

2nd

Year

15. Consent (extension) pg. 18

16. Informed Decision Making pg. 19

17. Refusal of Treatment pg. 20

18. Substitute Decision Makers pg. 21

19. Confidentiality pg. 23

20. Defining Death (Brain Death and Organ Donation)

pg. 24

21. Euthanasia pg. 26

22. Notifiable Conditions pg. 28

23. Immunisation pg. 30

24. Doctors Health/Incapacity pg. 31

25. Boundary Violations pg. 32

26. Counter-Transference & Stereotyping pg. 33

27. Self-induced Disease pg. 34

28. Patient Concepts of Illness pg. 35

29. Medical Over-servicing/PBS pg. 35

30. Commercialisation of Medicine pg. 39


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Court System

2 jurisdictions

1. Federal e.g. Medicare

2. State e.g. Criminal, negligence etc

2 areas of law

Civil

o Individual v Individual

o Balance of probabilities (standard of proof)

Criminal

o State v Individual

o Beyond reasonable doubt (standard of proof)

Crt Hierarchy:

Statutory Law: Acts of parliament and binding on the courts, they merely interpret these

documents

Common Law: Judge-made law, the law of precedent where decisions are binding on lower

crts in Australia decisions of the High Court are binding in all jurisdictions

High Court

Supreme Crt Full Crt Federal Crt Crt of Appeal Full Crt Family Crt

District Crt

Magistrates Crt

Specialised Crts

Tribunals

Federal Crt

Federal Magistrates

Crt

Commissions

Family Crt

State Jurisdiction Federal Jurisdiction


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Negligence

For a case in negligence to succeed you must establish the following:

1) Duty of Care

a. This can arise automatically (as in a Dr-Patient relationship here consideration of

potential contractual nature and fiduciary obligations lead to this)

b. Reasonable forseeability (is it reasonably foreseeable that my actions might be such

to bring this person into my consideration based on the neighbour principle) &

c. Proximity Council of Sutherland v Heyman (1985) CLR (High Court decision)

i. Physical

ii. Causal

iii. Circumstantial (Lowns v Woods NSW court of appeal decision, only

binding in NSW)

d. Note Sullivan v Moody (2001) CLR (High Court decision) which said that to establish

a duty of care the test was reasonableness in the circumstances according to

community standards

2) Breach of the duty

a. This is a breach of the standard of care

b. Standard here is reasonable care

c. Development:

i. UK had the Bolam principle (helpful but not applied in Aust) a Dr is not

negligent where he acts in accordance with accepted practice

ii. Rogers v Whittaker CLR (High Court decision) Bolam doesnt apply in

relation to information given to a patient

iii. Civil Liability Act (CLA) 2003 [Legislation passed across the country providing

consistency between jurisdictions in relation to civil liability e.g. negligence]

Bolam w/ the Bolitho qualification (the peer opinion cannot be irrational)

d. Ultimately the question of breach is a determination by the court

3) Damage

a. Must be actual damage

b. This can include psychological harm

c. NB: Wrongful life

i. CLA s49A (failed sterilisation)

ii. s49B (failed contraceptive procedure or advise)

iii. Where a healthy baby is born the parents are unable to take action for

wrongful life

4) Causation

a. There must be a causal link established between the damage and the breach of duty

Defences to a claim of negligence:

Voluntary assumption of risk

Contributory negligence


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Emergency Medical Treatment

There is no legal obligation in Qld to provide aid in an emergency setting voluntary

decision

However, there is an arguable ethical obligation

When you are involved in the care of a patient then there is a duty to attend (i.e. code blue

in hospital setting)

NT obligation to provide aid in any accident you are involved in

NSW Lowns v Woods (Crt of Appeal decision) when you are requested to attend then a

duty of care arises because of circumstantial proximity (arguably only when you are

purporting yourself out to be a Dr)

Note: once you commence giving first aid then you must continue until you are relieved or

physically unable to continue

But in Qld when a health professional provides first aid

o Law Reform Act (1995) ss15,16: protection from liability where aid in given in an

emergency situation, in good faith, for no reward, there was no impairment,

reasonable care and skill was used and there was no gross negligence

o CLA ss26,27: this is similar provision designed to protect groups like St Johns

Ambulance

o While not exactly Good Samaritan Legislation this is the closest available

Consent

Different actions are sought when a Dr treats a patient without consent

Civil law

o Trespass to person

o Assault (verbal) or Battery (physical)

Criminal law

o Assault (note Qld Criminal Code)

These relate to the application of force without consent

For valid consent you need to show:

1) Voluntary

a. Self explanatory the patient was voluntarily consent

b. Consider here the notion of Paternalism (see pg. 13)

2) Informed (disclosure of risks)

a. 2 limb test from Rogers v Whittaker


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i. Objective component must inform patient of all information/risks a

reasonable person would want to know

ii. Subjective component must inform patient of all information/risks

relevant to their particular circumstances

3) Specific

a. Consent must be to a specific procedure & a specific Dr

4) Competent Pt

a. See below

Common Law defences:

Necessity (this is more than merely convenience)

Emergency situations

o Patient is unable to consent & to

o Prevent loss of life or limb

Competency

Presumption at law that all adults are competent: Negative Duty to Disprove Competency

This is based on global competency & rationality of decisions

To prove competence show:

1) Generally the patient can:

o (Receive)

o (Retain)

o (Comprehend)

o (Recall) information

2) Integrate

o This encompasses the general nature of the information given to patients

3) Evaluate

o The patient must be able to consider the information and balance it against their

own moral code

4) Make a decision

o In weighing up the information given the patient must be able to reach a decision

5) Defend that decision

o The patient must be able to defend the reasons behind their decision

6) Adhere to this to the point of treatment

o The patient must stay the course w/ their decision


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Minors competence

Assumption of incompetence

Gillick (1986) UK decision adopted in Marions case (1992) CLR (High Court decision)

o A child can be shown competent using the above guidelines

o Query the ability of a child to refuse Rx in light of the decision in Gillick and other UK

decision a child cannot refuse Rx over parental consent where the Rx is in their

best interests, currently in Australia it is accepted that a child is not competent to

refuse Rx

Need to show the child has significant understanding/intelligence to fully understand what is

proposed

Specific Legislation re: Minors

South Australia legislation allowing those over 16yrs to be deemed competent to accept

medical Rx

NSW legislation allowing those over 14yrs to be deemed competent to accept medical Rx

QLD no specific legislation, application of common law to determine competency

General Notes

The burden will as the severity of risk s in terms of showing competence (especially for

minors)

Competency is not an absolute in that an individual may be competent to make certain

decisions while at the same time unable not competent for others

Types of competence

o Technical competence (Occurrent) cognitive (minors have this)

o Dispositional competence experience (this comes w/ age)

Confidentiality tracks competence

There is specific legislation in Qld to allow for blood transfusions to children even where the

parents do not consent (specifically designed to protect children of JWs)


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Involuntary Admission

Mental Health Act (2000) QLD s13(1) outlines the requirements

Need to show:

1. Mental illness

2. Requires immediate Rx

3. Authorised hospital available

4. There is a risk of harm to self or others (must be real risk)

5. No less restrictive Rx is available

6. Pt lacks competence OR s13 (2) pt has unreasonably refused assessment

Hierarchy of decision makers

Guardianship and Administration Act (2000) Qld, Power of Attorney Act (1998) Qld

Medical matters:

1. Competent patient

2. Advanced Health Directive (legal instrument)

3. Guardian (appointed under the Act)

4. Attorney under an Enduring Power of Attorney

5. Statutory Health Attorney (e.g. continuing spouse, non-paid carer, friends or

relatives)

6. Adult Guardian (statutory body last resort)

Financial matters:

1. Administrator

2. Attorney


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Medical Regulation

Drs have a number of duties

Under Criminal Law

(duties not to)

Under Civil Law In the Public Sphere

Intentionally cause death

Assist suicide

Cause death by gross negligence

Perform unlawful abortions

Be criminally negligent

Facilitate surrogacy

Cause GBH or assault

Defraud medicare -> Cth sphere

Attend

Diagnose

Treat

Follow-up

Disclose/inform

Keep confidence

Obtain consent

Use reasonable

care & skill

Report to the courts

Notify PPH issues

Certify accurately

Note that this is not an exhaustive list

Regulation of the medical profession:

o Health Practitioners Act

o Medical Practitioners Regulation Act

These provide for the Health Practitioners Tribunal

o District Crt Judges

o Assisted by health practitioners

Regulatory function:

o Conduct

o Competence

o Impairment

Actions:

o Deregister sexual misconduct

o Suspend clinical incompetence

o Can place limitations on practice


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Abortion

Legal Issues

Has been decriminalised in: ACT, NT, Victoria

Other jurisdictions:

o Unlawful abortion is a crime

o However, defences are available (Menhennit rules necessity and proportion: R v

Davidson (1969) Victorian case)

Necessity: To preserve life from serious danger (either physical or mental

health)

Proportion: circumstances are not out of proportion to the danger averted

Development of the defence:

o R v Bourne (UK decision) necessity related to preservation of life

o R v Wald (NSW) extension of necessity to include economic factors

o K v T (QLD) judgment indicated that Menhennit rules would be applied in Qld

o R v Bayliss & Cullen (QLD) application of the Menhennit rules in Qld

o Vievers v Connolly (QLD) expansion of necessity beyond the pregnancy

Qld abortion is covered by statute: Qld Criminal Code (1899)

o s224 unlawful abortion is a crime

o s225 crime for a mother to procure an abortion

o s226 crime to supply the means of an abortion

o s282 statutory defence (in reality the Menhennit rules) this protects the medical

field where an abortion is provided:

In good faith (i.e. necessity)

Using reasonable care and skill (i.e. proportion)

o s292 right to life

The right to life arises after the foetus proceeds from the mother it is

deemed a person at law

o s313

(1) Killing an unborn child is a crime equivocal to murder

(2) Assault of a pregnant woman leading to injury or death of the foetus a

crime

The standard of proof is beyond reasonable doubt


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Ethical Issues

Professional: AMA Code of Ethics (2004)

o Right to refuse service

Feel it is professionally unethical

Against moral convictions

For administrative reasons

Not in the patients best interests

Note that there is specific legislation governing this area: ACT, NT, Victoria, Tasmania, WA

Ethical viewpoints:

o Extreme Conservative

There is an inherent Right to Life (concept of ensoulment)

Generally religious

Focus on the potential of the embryo

o Extreme Liberal

Right requires and Interest which in turn requires a Concept

A foetus has no concept therefore no interest therefore no right

A right requires a particular person

Termination can be done at any stage of the pregnancy and there should be

no State interference

But a foetus has a right not to be harmed

o Intermediate

Abortion is morally serious but not always wrong

Foetus may have a strong right to life may be of significant value

Value proportional to Developmental Stage

Based on the potential for personhood

Transplantation

Governing legislation Transplantation & Anatomy Act (1979) Qld [ss8-15]

In relation to donation from minors living donation of regenerative tissue legally permitted

across Australia exception NT

o Note the ACT also allows for transplantation of non-regenerative tissue


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Legal position in Qld

Must certify

o Terms of consent

o Requisite medical advice was given

o Consent was made in the presence of the practitioner

o Parents of the child are of sound mind

o Consent was freely given

o The child understood the nature & effect of the procedure

o The child was in agreement

Qld has a 24hr waiting period after consent before tissue removal

Ethical considerations

NHMRC guidelines

o Should be minimal risks to donor

o Donation should be to a person of whom the donor has an intimate relationship (e.g.

sibling) [i.e. provides them with an indirect benefit]

o Donation should be a last resort

o Transplant should be proven efficacious & expected benefits with a good chance the

risks & discomfort are outweighed by the benefits

o Parental consent obtained with the child agreeing or giving ascent to the procedure

should make the best effort in terms of the childs understanding (consistent w/

the age of the child)

o Donor/recipient risks


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Responsibility to the patient and others

To act in the patients best interests

Need to respect and consider the rationality of patients (competence)

Determination

o Of competence (the rationality of the patient)

o Autonomy (consider the values of the patient) concept of Paternalism (balance

between Autonomy, Non-Maleficence and Beneficence)

Weak Paternalism -> imposition of Drs values on an incompetent patient

Strong Paternalism -> imposition of Drs values on a competent patient

Responsibility:

o Balance the values of Dr in light of the values of the community

o Rationality

ACAT

Multidisciplinary team which includes:

o Physiotherapists

o Occupational therapists

o Speech therapists

o Nurses

o Neuropsychologists

o Pharmacists

o Social workers

o Rehabilitation physician

Free assessment

Provide:

o Assessment

o Information

o Advice

Programs:

o CACP community aged care program [at home]

Department of Health and Aging determine the cost to the patient

o HACC home and community care program

Not just for aged but also invalids


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o EACH extended aged care at home

Home care but level of aged care facility

o NRCP national respite for carers program

o Aged care facilities

Low level care

High level care

Certification

Drs have a public duty to certify correctly

Workers Compensation claims:

o Legal instrument

o Duty under the specific legislation to fill out the document correctly

o Must include specific diagnosis of the impairment

Drs cert (i.e. sick certificate) requirements

o Letterhead

o Patient name

o Incapacity

o Date seen, return to work, of certificate

o Signed

Do not backdate or postdate

Unless patient consents do not include diagnosis

Retrieved from Medical Board policy of April 2009


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Models of Illness

Interaction which affects health requires balance

20th

Century (The changes seen in the above triad)

Living conditions (Environment)

o Fresh water

o Sewerage/efficient septic services

o Electricity: allowed for refrigeration

o Transport: food availability & diet

Medicine (Dr)

o Pharmacology: antibiotics

o Diagnostics: CT/MRT

o Aseptic technique/anaesthesia

o Specialisation

o Cost

o Technological innovation

o Transplantation

o Life extension/preservation

o IVF

Community expectations (Patient)

o knowledge expectations

o availability of information

o access to health

o Change in medical problems (DM, obesity)

o Aging population

General

There is now an burden of disease

Life expectancy has : population are unhealthy but live longer (QLYL Quality of life years

lost)

Health services:

Patient

Environment Dr


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o Focus on prevention

o Increased involvement and development of PPH

o Move toward a more economic model move away from social view of health

service

In the 20th

century biggest inroads were made by in living conditions

In the 21st

century biggest inroads will be made by living activities/lifestyle

modifications

Traditionally medicine took a biomedical approach focus on the pathology, the disease

process as a biological entity

The increase in availability of information for patients among other changes in the 20th

century saw increasing value placed on the social aspects of health care

Currently approved model is the biopsychosocial theory combination of the biomedical,

social and psychological impacts of disease and providing holistic care


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Consent (Extension)

Initial points covered in 1st

yr

Ethically consent is: the voluntary authorisation by an autonomous individual for another

person to perform/withhold a specific act

4 limbs to show valid consent

o Voluntary

o Informed

o Competent Patient

o Specific Dr/Specific procedure

Important to remember that a competent patient has the right to consent to or refuse

treatment (competence is not an absolute in that a patient may be competent to make a

decision about one aspect of their healthcare while incompetent in relation to other areas)

Failure to gain consent leads to actions in civil law: trespass to person battery (application

of force) or assault (fearing force will be applied) OR criminal law: assault

The nature of consent means there are specific challenges for the medical field:

o Consent is for a specific procedure note that conducting a different procedure (e.g.

removal of incorrect kidney, sterilization instead of appendectomy etc) can give rise

to actions in Trespass and Negligence (look over requirements for an action in

negligence in 1st

yr notes) unlike negligence an action for trespass does not require

actual damage

o Procedure must be legal: note that illegal abortions are a criminal offence thus a

patient cannot validly consent to these

o Consent is for a specific person (Doctor): here it is important to look at the wording

of specific instruments and consider public hospital settings (where a consultant

gains consent for a team)

As discussed in 1st

yr notes there are defences to this (notably emergency situations)

An action is trespass is based on a patients general understanding in that a patient must

have a general understanding of the procedure else an action in trespass may arise


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Informed Decision Making

For valid consent the patient needs to be informed what constitutes this?

o This is an area of the law which has been developed over the years but now has

clear precent

This is more than merely a general understanding as seen from case law

Primary case is Rogers v Whittaker (1992) CLR High Court decision

o Mrs Whittaker underwent eye surgery to correct the cosmetic appearance of an eye

damaged some 40yrs prior during her childhood. Prior to the surgery she was

informed of the general risks but not of the 1:14,000 chance of developing

sympathetic opthalmia (a condition she subsequently developed and resultantly lost

all eyesight)

o In the lead up to the surgery she was very concerned that the wrong eye would be

operated upon and even while on the trolley outside the theatre checked w/ the

nursing staff that her good eye would not be touched

o The court chose not to follow the argument that the Bolam principle (acting in

accordance w/ the standard practice of a group of peers) should not apply to the

provision of information and developed a two limb test:

o The patient should be informed of

All information which a reasonable person would attach significance to

know in relation to risks, complications etc about the procedure (an

Objective limb general nature)

All information which that patient would attach significance to in relation to

the above aspects of the procedure (a Subjective limb) [a heavy onus]

o Further this test not only applied to the standard of care (when determining

whether the doctor had breached their duty) but also the question of causation

here the patient need only prove that they would not have gone ahead w/ the

procedure given the information a doctor failed to inform them of rather than the

typical reasonable person test

Rogers v Whittaker did leave some independence with the medical fraternity in relation to

informing patients there remains a therapeutic privilege which allows doctors to refrain

from disclosing certain information to patients which may in itself lead to significant harm

(query the notion of paternalism here)


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The CLA was introduced in 2003 which aimed to limit public liability this Act maintained

the legal doctrines relating to tort law but looked at minimising the remedies available

o The Bolam principle was introduced in relation to standard of care however, the

Bolitho qualification was introduced such that peer opinion relied upon could not be

irrational (a court determination)

o However, for informed decision making the Rogers v Whittaker two limb test was

maintained w/ a slight modification:

Objective/proactive limb what a reasonable person would require

Subjective/reactive limb what the doctor knows or ought to know that the

patient would want to know

Arguably a lesser duty than that required under Rogers v Whittaker

Refusal of Treatment

As per consent to treatment a competent patient may validly refuse treatment (even to

death)

The onus on a doctor wishing to intervene is to show that the patient is not competent

(global presumption of competency for adults as discussed in yr 1)

Note that a patient must be informed of all the risks relating to any refusal

There is a multitude of viewpoints on this matter note English case law suggesting that a

right of choice exists for patients even where reasons are irrational, unknown or non-

existent

It is safe to say that in Australia provided a patient is adequately informed and competent

their decision will be binding even where a doctor considers it irrational

As discussed on below where a person is incompetent to refuse treatment the next step is

to determine a substitute decision maker

In relation to minors decision makers must act in their best interests and there are specific

legislative instruments which address this (note pg 8 and the refusal of blood transfusions

for children)


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Substitute Decision Makers

A competent patient has the right to determine their own health matters

When incompetent there needs to be a substitute decision-maker for these matters

As outlined on pg 9 there is a hierarchy of decision makers note:

o Guardianship and Administration Act (2000) Qld, Power of Attorney Act (1998) Qld

Health decisions include the provision of or the withholding/withdrawing of life sustaining

measures

Advance Health Attorney (AHD legal instrument)

o Written document allowing a competent patient to make decisions relating to their

health care in the event they become incompetent to make decisions

o Only comes into effect when the individual loses competence

o 3 major requirements

Signed by a doctor

Signed by an independent witness

Statement of understanding signed by patient

o A valid AHD must be followed but exceptions in Qld

o An AHD may direct the withdrawal of life-sustaining treatment where:

The patient has: terminal illness or condition that is incurable/irreversible

and in the opinion of treating doctor and another doctor reasonable to

expect they will die within 1 yr OR

The patient is in a permanent vegetative state OR

The patient is permanently unconscious (no reasonable prospect of

regaining consciousness) OR

The patient has an illness/injury so serious that there is no reasonable

prospect of recovery such that life cant be sustained without continued

life-sustaining measures

o AND

For artificial nutrition and hydration must be considered

commencing/continuing would be inconsistent w/ Good Medical Practice

The patient has no reasonable prospect of regaining capacity for health

matters

o AMA support that a doctor need not follow an AHD when it is inconsistent with good

medical practice or where a doctor has a conscionable objection note there is no


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Australian clinical practice guidelines relating to withholding/withdrawing treatment

but remember the CLA and reasonable peer opinion

Ethical issues

o Are the interests of the incompetent individual the same as the competent decision

maker? (same person different interests or even same interests different people)

In terms of argument a) the competent person has critical interests as

opposed to the experiential interests of the incompetent person critical

interests take priority as proxies entrusted w/ their interests and community

memory aims to honour their wishes

In terms of argument b) once individual is incompetent there is no individual

(no person) therefore there is no right to life and withdrawal of treatment is

not infringement

Patient concerns in terminal illness: loss of mental faculties, loss of control,

loss of independence [fear that an AHD may limit their care]

Doctors concerns: loss of control, uncertain legal position, AHD Euthanasia?

Statutory Health Attorney (SHA)

o Persons > 18yo who have a relationship w/ the individual

o Order of priority: spouse/partner (continuing), non-paid carer, friend or family, Adult

Guardian

o Where there is a dispute the Adult Guardian can act as mediator or make decisions

in lieu of the SHA

Adult Guardian (statutory body last resort)

o Independent statutory body report to Qld Parliament

o Protect incompetent adults (protect, investigate claims, mediate disputes, conciliate)

Can be appointed by the Guardianship and Administration Tribunal (GAAT), be nominated under an

EPA or AHD or act as SHA of last resort where no person takes over decision making


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Confidentiality

Confidentiality tracks competence: a competent patient can expect a doctor to maintain

confidence (outside legislative requirements) in terms of their treatment

Ethically confidentiality can be considered as being of dual interest to patients:

o Individual interest patients have an individual concern in doctors maintaining

privacy (leads to better individualised care)

o Public interest trust in doctors will aid in the public image of the medical

profession (leads to better community care)

AMA ethical guidelines (2004)

o Outline a requirement to maintain confidence

o Exceptions: serious risk to patient or other, legal requirements, approved research

or overwhelming societal interests

Breach of confidence can give rise to legal action in negligence or equity (area of law

concerned with justice and provided fair outcomes to parties where one has acted in good

faith to their own detriment in the absence of legal protection)

A breach of confidence can also give rise to disciplinary action under the Health Practitioners

(Professional Standards) Act (1999) for professional misconduct

Exceptions to the doctrine of confidence under law: legislative requirements (e.g. Public

Health Act as discussed above), court orders, privilege (i.e. protection where disclosing

information to legal counsel (professional privilege) this may be limited), disciplinary

matters, substitute decision making (disclosure to relevant person to allow a decision to be

made in the patients best interests)

Disclosure outside of these limits can only occur w/ patient consent certain circumstances

lead to implied consent for example access of records by administrative staff

o In these circumstances there is a requirement for 3rd

parties to maintain confidence

o For implied consent the reasonable person test would apply in relation to what

constitutes consent look at actions and surrounding circumstances

o Note that medical students are covered by the Health Services Act (1991) Qld as

designated persons

There is a public interest defence covering disclosure where:

o Specific, serious and immediate risk of harm occurring

o Which is likely to be reduced by the disclosure

o Disclosure is kept to a minimum to protect privacy


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o Public interest in avoiding the risk outweighs public interest in maintaining

confidence

Note in relation to disclosure of information concerning children (minors):

o Can be by adult consent OR

o Child where they are considered competent and consent to disclosure OR

o Child where not competent and guardian consents to disclosure OR

o Child and disclosure considered in their best interests

Patient access to records

o The ownership of medical records resides w/ the person who created them (i.e.

health professional/hospital) [Breen v Williams (1995) CLR High Court decision]

Patients do have a right of access to medical records Privacy Amendment (Private Sector)

Act (2000) Cth)

Defining Death (Brain Death and Organ Donation)

The notion of death has changed as society has developed and medical processes improved

as a result there is a medicalisation of death (this has both positive and negative affects)

The concept of death in the practical sense leads to 3 important questions:

o How should we define death?

o What criteria should be satisfied?

o What tests can ensure these criteria are met?

It is can broadly be considered that death is the permanent cessation of integrated

functioning of a whole organism

There is the dichotomy between death and brain death which has become an issue as

advancements in medical technology have both provided for life sustaining measures and

the development of organ transplant procedures

Organ donation criteria (brain dead patient):

o There is an upper age limit

o Brain death

o Donor is ventilated in ICU w/ intact circulation

o No hx of malignancy (exception is primary brain tumour)

If patient dies in ICU organs + tissue can be donated

If patient dies elsewhere only tissue can be donated


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Criteria irreversible cessation of blood circulation OR brain function (as noted by 2

physicians)

Coma exclusions for brain death

o Drugs

o Metabolic causes

o Electrolyte disturbances ( or )

o Core body temp 35C

o Confirm neuromuscular conduction intact

o Systolic BP 80C

o Need proof of cause of death

Tests to satisfy criteria (by 2 doctors 1 a specialist)

o Papillary reflex absent

o Corneal reflex absent

o Gag reflex absent

o Cough reflex absent

o Ocular-vestibular reflex absent (water in eardrum)

o Apnoea test remove from ventilation PaCO2 65 + no breathing

o dead

If donor:

o Radiological Ix 4 vessel angiogram + radionucleoside scan

Once confirmed dead brain protection therapy + organ protection therapy

Legally need to check if on donor register or provision under will otherwise seek the

approval of the appropriate decision maker (note that donor on drivers licence is not

sufficient to over-rule the wishes of even a SHA)


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Euthanasia

Euthanasia is an issue of covering multiple areas

Terms:

o Voluntary euthanasia ending the life of a competent informed individual

o Active voluntary euthanasia action by another (usually doctor) at request of

competent informed individual to end that persons life

o Physician assisted suicide person ends own life (suicide) but is assisted by a

physician except to deliver fatal action

o Passive euthanasia controversial term generally used to describe the withholding

or withdrawing of treatment resulting in an individuals death

o Non-voluntary euthanasia action by another to end of the life of a non-competent

individual

o Involuntary euthanasia equivalent of murder, action by another to end the life of

a competent individual against their wishes

There is no legal right to die the argument for euthanasia is a right to die in the manner an

individual chooses:

o Based on self-evaluation

o Support is based on the concept of autonomy

o Opposition based on morally wrong to legislate will lead to abuse (various levels of

argument from religious to social conscience)

o Moral argument so both sides are often merely counter-arguments of the other

sides position

o Ethical argument that palliative care and euthanasia are compatible not alternatives

Legal position:

o Criminal Code Qld s300 (unlawful homicide is a crime murder); s311 aids,

counsels, procures another to kill themselves is guilty of a crime

o Criminal Code Qld s284 no defence to a charge of murder that the other person

consented to their death (cannot consent to assault and/or murder)

o To kill another includes both act and omission s296 Criminal Code

o Failure to provide necessities of life when under a duty to do so leaves an individual

criminally liable s285


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o In a medical setting failure to provide necessities will not constitute killing when a

competent patient refuses (note here the issue of AHDs) or it is futile (futile

treatment by its very nature cannot be necessary)

o Criminal Code Qld s282A provides legislative protection to medical practitioners

where the giving of palliative care leads to the death of an individual provided

Reasonable care

In good faith

With reasonable care and skill

o Crimes Legislation Amendment (Telecommunications Offences and Other Measures)

Act (2004) Qld promotion of suicide, counselling or incitement of suicide is a crime

Profession

o AMA officially is opposed to euthanasia (cf. Abortion where the profession has a

neutral standpoint)

o There is no specific reasoning outlined in the AMA 2007 Policy Statement on End of

Life Care relating to this viewpoint but it could be said the argument lies in the

Hippocratic discord this topic arises

o Note that the following are not considered euthanasia by the AMA: not initiating or

continuing life-prolonging measures, the administration of treatment or other action

intended to relieve symptoms which may have a secondary consequence of

hastening death

o As a result the AMA are in harmony w/ the current legal position in Qld

Jurisdictions

o NT first jurisdiction in the world to legalise voluntary euthanasia/physician assisted

suicide 1995 (this was overridden by the Cth government in 1997)

o Other jurisdictions Netherlands, Switzerland, Belgium, Luxenburg, Oregon

o Euthanasia is not currently legalised anyplace within Australia


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Notifiable Conditions

There are certain conditions which in Australia require immediate notification e.g. to

health authorities

Public Health Act (2005) Qld outlines requirements and also provides protection against

breach of confidentiality (s75 (7), (8))

o Chapter 3: Notifiable Conditions particularly infectious diseases and certain other

conditions

These are conditions which are of significance to public health

Doctors/Hospitals clinical diagnosis (s70), provisional diagnosis

Pathologists/laboratories pathological diagnosis, pathological request

These are outlined in Schedule 1 Public Health Regulation (Qld) 2005

(notification within 48hrs)

Immediate notifications covered in Schedule 2 Public Health Regulation (Qld)

2005 (immediately after examination or test result or request)

Examples: acute flaccid paralysis, acute rheumatic fever, adverse event

following vaccination, Chlamydia, Dengue fever, Hepatitis (Hep A), HIV

o Chapter 5: Child Health suspected child abuse and neglect

Requirement to report to Department of Child Safety (DOCS) where there is

a reasonable suspicion of abuse or neglect

Protection against breach of confidentiality and liability

Failure to report is an offence

o Chapter 6: Health Information Management

Perinatal statistics (s223)

Cancer notifications on the cancer registry (s241)

Pap smear registry (voluntary but duty to inform of existence and voluntary

nature plus document)

Certain cases where Doctors are required to report deaths e.g. Coroners Act (2003) Qld

o Also Births, Deaths and Marriages Registration Act (2003) Qld

Health professional (doctor or nurse) may be requested by a police officer to take a blood

sample for blood alcohol testing (Transport Operations (Road Use Management) Act (1995)

Qld) may refuse if reasonable belief this will be prejudicial to treatment of the individual

o Protection from liability if patient does not consent

Doctors must inform patients (Public Health Act)


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o Of the reasoning behind notification (s99)

o The patient must comply w/ contact information requirements (unless reasonable

excuse does not include self-incrimination) (s100)

o Duty not to disclose confidential information directly or indirectly (s77)

o Disclose by relevant person under the Act is exempt from this (s78)

o Notify using form PHU s70

Fitness to Drive

o There is no legal duty in Qld to inform Department of Transport as to an individuals

fitness to drive (cf. SA, NT)

o However, when you notify in good faith there is protection from liability

o The duty is on the licence holder to inform the Department therefore there is a

duty for a doctor who reasonably believes someone unfit to drive to highlight this to

the patient and to inform them of the risks of continuing to drive (negligence)

o The AMA oppose mandatory reporting


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Immunisation

Australian Vaccination network believe parents choice for childhood vaccination

Ethical issues of immunisation cover:

o Autonomy consent and rights of patients/parents

o Public health community interests

o Public policy introduction of compulsory vaccination? Public funding

Autonomy

o Here we have a parent consenting for a child

o Must take note of whos best interests are meant to be served (the child)

o Risk perception an issue risks are more real due to visibility than disease,

perceived low-risk of illness

Barriers to immunisation

o Socio-economic status

o Frequent moves

o Geographical

o Illness

o Dismissive attitude of medical profession

o Media

Public health

o Heard immunity aided by high vaccination rates

o But this leads to unvaccinated gaining benefit

o Since herd immunity aids the common good does failure to vaccinate constitute

harm to others? as such is there an obligation to be vaccinated


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Doctors Health/Impairment

Common health problems for doctors:

o Depression and suicide higher rates depression male doctors, higher rate suicide

3-4x female doctors as opposed general female community (question availability of

means and skill)

o Alcohol and substance abuse 7% doctors have a problem w/ substance abuse

(financial means, generally unsupervised work)

o Relationship difficulties pressures of work life, work hours, income pressures

(pressure to earn), personality of trainees (obsessive)

o Stress/burnout disenchanted, may impact on ability to relate to patients and

families, anger at the health system

Possible causes:

o Selective recruitment selection criteria may favour obsessive personalities, highly

driven in addition to stereotyping of the doctor role by students

o Public attitudes high expectations, little true understanding of burden of

responsibility, increasing litigation (leading to undermined confidence)

o Socialisation as students stresses associated, abuse (from substance to superiors),

concept of failure and high standard set by peers

o Type of patients treated note the feeling of helplessness associated with chronic

disease, self-destructive patients,

o Professional issues emotional demands associated with the profession, exposure

to suffering

Best practice

o Have your own GP

o Address issues and seek help do not self-prescribe

AMA Code of Ethics 2004

o First consider wellbeing of your patient

o Accept responsibility for your psychological and physical wellbeing as it may affect

your professional ability

Note particularly that physician impairment may still have stigma associated with it however

the Medical Board take kindly Drs who self-advise note there is a duty to advise of any

reasonable known impairment to your practice at registration and once evident

o Health Assessment and Monitoring Program


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Boundary Violations

Recap of the 4 bioethical principles

o Autonomy self determination

o Non-maleficence do no harm

o Beneficence act in the patients best interests

o Justice be fair in all dealings

Professional boundaries

o Designed to balance the patients vulnerability with the professionals powers

o Maintenance of these boundaries respects autonomy, is beneficent and serves non-

maleficence

o The relationship between a doctor and patient is fiduciary in nature this means

that the patient is relying upon (via the implied contract payment for services

rendered) the special skills (which are recognised by the community) of the

professional (here a doctor) and as such there is a higher obligation placed on the

professional to act in the patients best interests

o Boundaries are placed not only to protect the patient but also the doctor to save

them from being overwhelmed

Violations may be:

o Intentional or unintentional excursions return to normal limits of professional

relationship (imply no harmful long term effects)

o Violations imply harm to the patient here the needs of the patient are superseded

by the needs of the doctor

o Breaches can be:

Forming personal relationships

Sexual misconduct

Dual relationships

Accepting gifts

Office of Health Practitioner Registration Board

o 13 registration acts: particularly Health Practitioners (Professional Standards) Act

(1999) Qld designed to protect the public and uphold public confidence in the

profession

o Board can investigate where:

Receives a compliant


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Complaint referred from Health Rights Commission

In absence of complaint where reasonable belief conduct grounds for

disciplinary action

o Potential actions:

Reject the complaint

Refer to HRC or other entity

Investigate

Deal w/ impairment under the Act

Deal w/ complaint via disciplinary proceedings

Suspend/impose conditions on registrant

o Grounds for disciplinary action

Unsatisfactory professional conduct

Conviction for indictable offence

Failure to comply w/ conditions/undertakings under the Act

o Disciplinary action:

Advice, caution, reprimand

Enter an undertaking

Impose conditions on practice

Counter-Transference & Stereotyping

Generally

o Counter-Transference:

Emotional response to individual without basis

May be positive or negative

o Stereotyping

Attributing a global set of characteristics based on observed characteristics

Culturally based

Generally negative

A form of prejudice

Medically

o Transference:

Patients view of doctor

May be problematic where dependence or early termination


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May lead to regression of patient

o Counter-transference:

Doctors view of patient

Positive feelings may lead to boundary violations

Negative feelings may lead to deficient care

May lead to regression of doctor

Positive alliance

o Maximisation of placebo effect:

Expect successful outcome

Shared goals

Equal understanding of treatment process

Experience competent/caring doctor

o Requires positive counter-transference (not eroticised) with genuine regard for

patient

o Must contain negative counter-transference (this mustnt be contained but

shouldnt necessarily share w/ patient)

Self-Induced Disease

Form of counter-transference blaming the patient for their current condition

Estimate that 9% of hospital admissions avoidable through preventative care

Individual responsibilities to avoid illness but based on assumptions

o Freedom, choice and control of actions

o Ease of behaviour changes

o Lack of economic impediments

Australian Better Health Initiative government program targeted at early detection and

prevention of chronic diseases and sequelae

o Aim to improve coordination & communication between health services

Structural model looks at the frameworks around individuals

Government are committed to health expenditure but also receive substantial income from

certain substances (e.g. smoking, alcohol) reluctance to take unpopular action, rather

move to shift blame


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Patient Concepts of Illness

General principles apply:

o Patients are individuals first presenting w/ a series of symptoms seeking a

diagnosis

o Do not over-medicalise problems but rather aim to give holistic care

o Seek to provide care at the patients level do not over or under simplify the

provision of information

o Remember that a diagnosis can have a significant impact on the patient so provide

the best support possible in terms of the diagnosis itself, advice and treatment

options

o There is stigma associated with many conditions on the level of both society and

the medical profession (e.g. Chronic Fatigue) be aware of this and try not to

stereotype patients or counter-transfer

Medical Over-Servicing & The PBS

Administration of Medicare and the PBS by Medicare Australia (Cth)

Medicare may seek for the Director of Professional Services Review to review provision of

services by professionals suspected of inappropriate practice

o Unacceptable services

Rendering services

Prescribing

Over-servicing

o Unacceptable conduct

Look to records in determination good records are vital

Under regulation 7 inappropriate practice includes:

o 80 or more professional attendances on 20+ days in 12mth period

Mechanisms:

o Audits

o Systematic data analysis

o Targeted projects

o Public information: patients, practitioners, practice managers, professional bodies

Pharmaceutical Benefits Scheme:


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o Designed for public reimbursement for medications (keep cost of necessary

medications to community at a minimum)

o Medications listed on PBS if:

Needed for treatment of condition not covered by current drugs

acceptable cost-benefit

Current drugs but more effect/less toxic acceptable cost-benefit

Current drugs and as effective/safe similar/better cost-benefit

o Resource allocation based on:

Size of problem (public health)

Evidence (EBM)

Value for money (economic considerations)

Cost minimisation

Cost effectiveness

Cost utility (cost per QALY) look at area under curve

Restrictions designed to restrict use to specific patient groups by limiting PBS prescriptions

o Unrestricted

o Restricted benefit

o Authority required

Future challenges:

o demand

o Aging population both demand and capacity to pay

o Pharmacogenomics target Rx for best cost-benefit

o cost w/ cost effectiveness

o Uncertainty of predicted benefits leading to risk sharing

o effective patent life seek for earlier returns


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PBS approval:

MIMS

Therapeutic Goods Administration

Australian Drug Evaluation Committee

Register of Therapeutic Goods

Pharmaceutical Benefits Advisory Committee

Drug Utilisation

Subcommittee

Economics

Subcommittee

Minister

Pharmaceutical Benefits Schedule

Pharmaceutical Benefits Pricing

Authority


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Medical Review:

(Not improved or up to standard)

(Not improved/unsatisfactory)

(Looks at appropriate service/appropriate PBS use)

(Notify)

(After 2 Determining Authority referrals)

Practitioners Review

Programme

Written Concerns

& Interview

Complete Review Period

Determination

Improved

Complete Satisfied Medicare Australia

Medical Director Review

Professional

Services Review

Determining

Authority

Either:

- Review Dismissed

- Reprimands

- Disqualified from:

Medicare, PBS

- Repayment

Either:

- Reprimand

- Counsel

- Disqualified for 3 yrs

Medicare Australia

Participation Review

Committee

Review

Either:

- Satisfactory

- Disqualified for 5 yrs


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Commercialisation of Medicine

Primary concern advertising

o Medical Practitioners Registration Act (2001) Qld

s168 obligations of advertisers: must not be misleading or deceptive,

cannot contain endorsements or testimonies, cannot be disparaging of

other professionals, must only be for expertise held

s169 information to appear in advertisements

Note also anti-competitive arrangements such as RACP and RANZR (these are not

acceptable)

Documents

Tumbos Ethics & Law v2