EPPD HANDBOOK

By Ian Kemp
MBBS II, 2005
University of Queensland

A compilation of issues from the Ethics,

Personal & Professional Development Domain

EPPD HANDBOOK
Compiled by Ian M. D. Kemp, LLB(Hons), BSc(Hons)

2004-5 pursuant to the Berne Convention

Disclaimer:
This booklet has been compiled for study purposes only, and as such contains my personal
approach and views on many of the issues mentioned within. Given its purpose and the time
constraints surrounding its creation, it is neither comprehensive nor have I checked it for
accuracy. Societal ethics, professional codes of conduct, the common law and international
covenants are all subject to change, and are being constantly revised, updated and amended.
So dont expect this booklet to be flawless. The information contained herein should not be
taken as professional advice of any kind. If you are in a situation where you need a to know
your rights and obligations under the law, then seek advice from a proper professional source
dont rely on the information contained herein. Above all else, use common sense when
reading and using this document. It has been written by a student for other students to use as a
study guide for the MBBS course, nothing more than that is intended.

TABLE OF CONTENTS
TABLE OF CONTENTS..................................................................3
1. INTRODUCTION TO THE LAW...................................................7
OVERVIEW OF THE AUSTRALIAN LEGAL SYSTEM ...................................................................7
HIERARCHY OF COURTS IN AUSTRALIA..................................................................................8
DEALING WITH LEGAL AND ETHICAL PROBLEMS...................................................................8
CIVIL PROCEEDINGS................................................................................................................9
CRIMINAL PROCEEDINGS.........................................................................................................9
TORTIOUS LIABILITY.............................................................................................................10
2. MEDICAL ETHICS & BIOETHICS..............................................11
THE FOUR PRINCIPLES OF MEDICAL ETHICS........................................................................11
AUTONOMY...........................................................................................................................11
NON-MALEFICENCE...............................................................................................................12
BENEFICENCE........................................................................................................................12
JUSTICE..................................................................................................................................13
3. NEGLIGENCE........................................................................14
ELEMENTS OF NEGLIGENCE..................................................................................................14
DUTY OF CARE......................................................................................................................14
STANDARD OF CARE..............................................................................................................16
CAUSATION/REMOTENESS OF DAMAGE................................................................................17
THE MEDICAL INDEMNITY CRISIS.........................................................................................18
4. DUTY TO RESCUE.................................................................19
GENERAL PRINCIPLE.............................................................................................................19
QUEENSLAND LEGISLATION..................................................................................................19
LOWNS V WOODS..................................................................................................................20
5. AUTONOMY & CONSENT........................................................21
THE CONCEPT OF AUTONOMY...............................................................................................21
THE TEST FOR VALID CONSENT............................................................................................21
COMPETENCE.........................................................................................................................21
REASONABLY INFORMED.......................................................................................................22
VOLUNTARINESS....................................................................................................................23
6. REFUSAL OF TREATMENT......................................................24
CAPACITY TO REFUSE TREATMENT.......................................................................................24
ETHICAL DILEMMAS..............................................................................................................25
OVERRIDING TREATMENT REFUSALS/TREATING WITHOUT CONSENT..................................26
7. CONSENT BY MINORS...........................................................27
WHO IS A CHILD?..................................................................................................................27
PARENTAL RIGHTS V CHILD RIGHTS.....................................................................................27
CONSENT TO TREATMENT BY MINORS..................................................................................27
LEGAL POSITION IN OTHER STATES......................................................................................29
GAINING CONSENT TO DO MEDICAL PROCEDURES ON MINORS...........................................29
LAW REFORM COMMISSION RECOMMENDATIONS.................................................................29

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8. RIGHTS OF THE CHILD..........................................................30
RECOGNIZED RIGHTS OF CHILDREN ......................................................................................30
DEVELOPMENTAL CHARACTERISTICS OF MATURE MINORS.................................................30
DUTIES OF PARENTS/CARERS UNDER THE CRIMINAL LAW..................................................30
INTERNATIONAL HUMAN RIGHTS CONVENTIONS..................................................................31
9. SUBSTITUTE DECISION MAKING.............................................32
MAKING DECISIONS FOR AN INCOMPETENT PATIENT...........................................................32
WHO CAN MAKE DECISIONS..................................................................................................32
ADVANCE HEALTH DIRECTIVES............................................................................................33
10. MENTAL INCAPACITY, SELF-HARM & FORCIBLE DETENTION....35
CONSENT FOR THE MENTALLY IMPAIRED, RETARDED, AND INCAPABLE..............................35
INVOLUNTARY ASSESSMENT & TREATMENT UNDER THE MENTAL HEALTH ACT.................35
EFFECT OF ADVANCE HEALTH DIRECTIVES..........................................................................38
11. CONFIDENTIALITY & DISCLOSURE........................................39
THE DUTY OF CONFIDENCE..................................................................................................39
DISCLOSURE OF PATIENT INFORMATION...............................................................................40
MEDICAL RECORDS...............................................................................................................41
WHEN A PATIENT SPECIFICALLY ASKS THAT INFORMATION NOT BE RECORDED....................41
12. NOTIFICATION....................................................................43
PRINCIPLES OF NOTIFICATION...............................................................................................43
LIST OF NOTIFIABLE CONDITIONS.........................................................................................43
MANDATORY NOTIFICATION OF DISEASES............................................................................44
WHICH DISEASES ARE NOTIFIABLE.......................................................................................45
13. PROFESSIONAL SELF-REGULATION.......................................48
PROFESSIONAL STANDARDS..................................................................................................48
THE MEDICAL BOARD OF QUEENSLAND...............................................................................49
THE HEALTH PRACTITIONERS TRIBUNAL..............................................................................50
THE PROFESSIONAL CONDUCT REVIEW PANEL....................................................................50
SIMILARITIES BETWEEN THE SCHOOL OF MEDICINE & THE MEDICAL BOARD.....................51
14. PROFESSIONAL OBLIGATIONS & RESPONSIBILITIES...............52
DEFINITIONS OF MEDICAL ETHICS AND MEDICAL ETIQUETTE.............................................52
SECOND OPINIONS.................................................................................................................52
REFERRALS FROM GENERAL PRACTITIONERS TO SPECIALISTS.............................................53
SCOPE OF THE STUDENT / DOCTOR RELATIONSHIP...............................................................54
PROFESSIONAL BOUNDARIES & UNPROFESSIONAL CONDUCT..............................................54
SEXUAL RELATIONSHIPS B/W DOCTOR AND PATIENT...........................................................55
15. OBLIGATIONS TOWARDS IMPAIRED COLLEAGUES..................57
COMMON CAUSES OF IMPAIRMENT.......................................................................................57
RESPONSE TO IMPAIRMENT....................................................................................................57
IMPAIRED PRACTITIONER PROGRAMS...................................................................................58
ETHICAL OBLIGATIONS FOR DOCTORS..................................................................................59
16. DOCTORS & THE PHARMACEUTICAL INDUSTRY.....................60
RELATIONSHIP B/W DOCTORS & PHARMACEUTICAL INDUSTRY...........................................60

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PHARMACEUTICAL SPONSORED TRAVEL...............................................................................60
SUPPORT FOR MEETINGS & OTHER EDUCATIONAL ACTIVITIES............................................61
GIFTS & SAMPLES.................................................................................................................61
17. COMMERCIALISATION OF MEDICINE & ADVERTISING.............62
DEREGULATING THE MEDICAL PROFESSION.........................................................................62
ADVERTISING RULES.............................................................................................................62
18. MEDICAL CERTIFICATES.......................................................64
REQUIREMENT OF VERACITY IN THE ISSUING OF CERTIFICATES..........................................64
FORMALITIES & PENALTIES...................................................................................................64
19. CONCEPTUALISATIONS OF HEALTH AND ILLNESS...................66
ESSENTIAL AND NOMINALIST CONCEPTIONS OF DISEASE....................................................66
STATISTICAL, FUNCTIONAL AND PROGNOSTIC VERSIONS OF ABNORMALITY.......................66
EVALUATIVE AND DESCRIPTIVE MODELS OF DISEASE AND ILLNESS....................................66
20. CHRONIC ILLNESS & ALTERNATIVE THERAPIES......................68
USE OF ALTERNATIVE THERAPIES.........................................................................................68
COMPLEMENTARY MODALITIES WITHIN ALLOPATHIC MEDICAL PRACTICE..........................68
21. IMPLICATIONS OF AGEING & FATAL ILLNESS.........................70
REACTIONS TO SEPARATION AND LOSS..................................................................................70
FEARS OF AND RESISTANCE TO DISPLACEMENT....................................................................71
AUTONOMY, INDEPENDENCE AND SUBSTITUTED DECISION MAKING..................................71
PROVISION OF INSTITUTIONAL CARE FOR THE ELDERLY.......................................................71
22. DELIVERING BAD NEWS......................................................73
ESSENTIALS...........................................................................................................................73
23. ETHICS OF SCREENING TESTS..............................................74
PRINCIPLES OF SCREENING....................................................................................................74
COMPONENTS OF AN EFFECTIVE SCREENING PROGRAM......................................................74
SUCCESSFUL & FAILED SCREENING PROGRAMS...................................................................75
GENETIC SCREENING.............................................................................................................75
24. ETHICS OF IMMUNISATION..................................................77
CONSENT & RIGHTS..............................................................................................................77
25. TRANSPLANTATION.............................................................78
TISSUE DONATION BY MINORS.............................................................................................78
DONATION TO SIBLINGS THE PARENTAL ROLE..................................................................79
26. ABORTION..........................................................................80
WHAT KIND OF QUESTION IS THE ABORTION QUESTION?....................................................80
PERSPECTIVES ON THE MORALITY OF ABORTION..................................................................80
MORAL STATUS OF THE FOETUS...........................................................................................82
THE LAW ON ABORTION........................................................................................................82
Abortion Law in Queensland............................................................................................82
Other States With Abortion Legislation............................................................................85
PROFESSIONAL OBLIGATIONS CONCERNING PROVISION OF ABORTION................................86

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27. DISCRIMINATION................................................................87
PRINCIPLES OF ANTI-DISCRIMINATION..................................................................................87
28. WORKCOVER......................................................................89
WHAT IS A WORKERS COMPENSATION SCHEME?.................................................................89
PURPOSE OF QUEENSLANDS WORKERS COMPENSATION SCHEME......................................89
WHO MANAGES WORKERS COMPENSATION?......................................................................90
THE SCOPE OF WORKERS COMPENSATION..........................................................................91
THE CLAIMS PROCESS (LODGING A CLAIM WITH WORKCOVER QUEENSLAND)..................92
THE ROLE OF DOCTORS........................................................................................................93
29. REHABILITATION & ALLIED HEALTH......................................94
ROLE OF ALLIED HEALTH PROFESSIONALS...........................................................................94
30. HUMAN RESEARCH ETHICS COMMITTEES..............................96
OBLIGATIONS OF HRECS......................................................................................................96
LIST OF LEGISLATION & WEBLINKS............................................97
USEFUL LINKS.......................................................................................................................97
STATUTES...............................................................................................................................97
REGULATIONS........................................................................................................................97
INDEX..................................................................................... 98
FACULTY LOS FOR MBBS I..................................................................................................98
RESOURCE DESCRIPTIONS - EPPD LECTURES FOR MBBS I...............................................101

1. INTRODUCTION TO THE LAW

Overview of the Australian Legal System
Australia inherited its legal system from Britain. This is known as the Common Law or
Adversarial system. The key aspect of this system is that the two sides to any dispute present
their strongest arguments to a judge, who then makes a decision. The rationale is that the
right decision is most likely to be found via robust argument. If each side is able to present
their arguments then all relevant considerations are more likely to be raised. This legal
system operates in most countries with British heritage, including Canada, New Zealand, the
USA etc. In comparison, the Civil Law or Inquisitorial legal system is utilized in many
countries on the European mainland. Under this system the judge plays an active role, with
the power to make inquiries into the circumstances surrounding a dispute. Most laws under
this legal system are codified. There are several other legal systems in play around the world,
but these are the two most relevant to us.
The common law system has two primary sources of law the Judiciary and the Legislature.
The judiciary makes decisions in individual cases, known as case law. Decisions of a superior
court are binding on lower courts (the principle of precedent) so long as the material facts are
the same. The legislature lays down statute law by enacting legislation (Acts of Parliament)
and reviewing subordinate legislation (Regulations). Statute law overrides case law.
Australia is a Federation, which means that there is a demarcation of power between the
States and the Commonwealth. The scope of Commonwealth legislative power is limited by
the Constitution, which contains certain heads of power. The Commonwealth can only
pass laws that are related to the subject matter contained within these heads of power. The
States have the power to legislate on any matter at all (plenipotentiary power), but
Commonwealth legislation overrides State legislation. Neither the states nor commonwealth
can pass legislation that is contrary to the constitution.
International Law is a separate area, and a rapidly growing one, with its own rules and
obligations. Treaties may be made between two or more nations (bilateral or multilateral),
and treaties with universal application are frequently known as covenants. The rules for
setting up a treaty are contained within the Vienna Convention. From the point of view of
Australian law, the executive branch of government (in this case the Prime Minister, Foreign
Minister or an Ambassador given plenipotentiary powers) signs treaties, but only the
legislature and judiciary can make law. Thus signing an international treaty does not make it
part of Australian law. The Parliament must pass legislation to implement Australias
obligations under any given treaty. This is entirely at the discretion of the Parliament, which is
one of the reasons why the Prime Minister must retain the confidence of the parliament.
The ability to enforce rights under treaties is highly circumscribed. Treaties themselves often
set out dispute resolution procedures for problems that may arise. If a procedure is not set out
in a treaty then countries can seek redress at the International Court of Justice (ICJ).
Decisions from the ICJ however are not binding. In practise, if an individual sues to enforce
a right under a treaty then they will actually sue under the enabling legislation, which is part
of Australian Law and is thus enforceable. An individual can also seek to enforce obligations
under international human rights conventions, but such decisions are not binding on the
Government. In nation v nation disputes, enforcement is usually a matter of both sides

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agreeing to meet their obligations, but they can always refuse to do so this is where trade
wars and conventional wars can arise.
Some useful distinctions
common law is often used as a synonym for case law (cf the common law system)
civil law is the body of law governing interactions between private individuals (cf the
civil law system). The alternative body of law is criminal law, which involves the State
prosecuting individuals.

Hierarchy of Courts in Australia

The hierarchy of courts in Australia is as follows*:
Privy Council (PC)
(pre 1986 only, legislated out by the Australia Act)

High Court of Australia (HCA)

(7 judges, final court of appeal on all matters)

Federal Court of Appeal (FCA) Court of Appeal (CA)

(3 judges, federal matters)
(3 judges, state matters)

Federal Court (FC)

Supreme Court (SCt)
Family Court (FC)
(1 judge, federal matters)
(1 judge, state matters civil/crim)
(1 judge, federal matters)

District Court (DCt)

(1 judge, civil matters <$250,000)

.
Federal Magistrates Court
Magistrates Court (MCt)
(1 judge, minor fed. matters) (1 judge, civil matters <$50,000)
* This is a guide only, especially with regard to what sort of matters can be heard at each level
of the court system. For example, criminal committal proceedings and minor summary
offences are heard at the Magistrates Court level).

Dealing with Legal and Ethical Problems

For any given issue an individuals ethical position will rarely match up with the legal
position. The law is based on tradition and defines certain boundaries which prescribe certain
activities. As such, it is slow to change and usually sets out rules that have gained majority
support in the community. It provides guidelines for what constitutes right action in
situations where disputes have arisen. It rarely provides guidance in situations where (i) there
is no widely accepted / predominant ethical position or (ii) no dispute has yet arisen. Where
laws have been put in place, however, they define what behaviour is acceptable and impose
penalties on those who fail to comply. If a person engages in an illegal activity they will be
subject to redress and punishment regardless of whether they consider their own actions to be
ethical.

When dealing with a legal problem, it is important to first identify the general principle of law
that governs the issue. Individual facts do not change legal principles, they simply tell you
which side of the principle a particular situation falls on. The general principle is usually
found in case law, while exceptions to the rule are frequently found in statutes. For example,
the general rule governing confidentiality in the doctor-patient relationship is set down in case
law. There are, however, certain statutory exceptions where a medical practitioner is required
to notify either the police or another public authority of certain information if it arises. While
ethical considerations often form the rationale for a given law, they will not usually have a
bearing on the problem unless the law is silent on a given issue. Since the law frequently sets
the outer boundary of what may be considered appropriate behaviour, however, your actions
should be guided by your personal ethics but dont go outside the law, or you will face the
legal consequences.

Civil Proceedings

Civil proceedings are

intended to compensate an injured party
financial penalty (damages) is the most common remedy
(other remedies are also possible, such as declaratory relief, specific
performance and an account of profits. In any event, civil
proceedings do not lead to penal sentences.)
the onus of proof is on the plaintiff to prove their case
the standard of proof is on the balance of probabilities

Motivational seriousness ranges from

innocent negligent reckless intentional

The range of interests protected by the civil law are

bodily security (most protected)
property / reputation
economic (least protected)

Criminal Proceedings

Criminal proceedings are

intended to punish the offender and protect the community
incarceration is the most common remedy
(fines are often imposed for minor/summary offences)
the onus of proof is on the Crown (the prosecution) to prove their
case
the standard of proof is beyond reasonable doubt
decisions must usually be made unanimously by a jury of 12 people

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Criminal intent must usually be proven for most crimes as well as the
physical actions. Note however that this is not always necessary eg in
cases of criminal negligence and breach of the legal duties set out in
the Criminal Code (Qld)

Tortious Liability
The law of torts is a body of law that deals with civil wrongs between individuals. It is
predominantly case based law, although some statutes (such as the Defamation Act, Sale of
Goods Act and Motor Vehicle Insurance Act) also have some application. Tort law includes
such areas as trespass, conversion, detinue, wilful injuries, defamation, negligence and
nuisance. The most relevant torts for a medical practitioner are trespass to the person and
negligence.

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2. MEDICAL ETHICS & BIOETHICS

The Four Principles of Medical Ethics
1)
2)
3)
4)

Autonomy respect for decisions which self-regulate peoples medical care

Non-maleficence cause no harm, do no harm
Beneficence prevent harm, do good
Justice fairness

The four principles of bioethics are derived from common morality and medical tradition.
They provide guidelines, a common moral language and a conceptual framework, whilst
still leaving considerable room for judgement in specific cases.
They provide the foundations on which clinical decisions can be evaluated ethically.

Ethics is an analytical and methodological inquiry into how moral judgements should be and
are made. It is therefore prescriptive rather than descriptive (ie it explores what we should do
rather than what we can do), seeking to identify moral concepts, rules, action-guides or
principles of behaviour that provide a basis for a peaceful co-existence in society.
Bioethics is practical ethics as applied to clinical practice, public health, health resource
allocation, and health related research. It is a systematic approach to morality and is also
broadly concerned with human wellbeing and the maintenance of peaceful society.

Autonomy

The concept that each person is the rightful determiner of his/her own life
In bioethics the principle of autonomy asserts that humans have a right of non-interference
when making decisions about themselves.
John Stuart Mill argued that all persons should be able to develop according to their own
values or beliefs so long as they do not interfere with the autonomous actions or beliefs of
others.
Respect for the autonomy of individuals has prima facie standing as the predominant
ethical principle. It is however constrained by competing moral principles and by the
requirement respect for the autonomy of others.
Autonomy depends on the patients competence to make an informed decision

In health care autonomy plays a major role in decisions concerning:

o Consent to treatment consultation with patient and agreement is needed
o Privacy
o Confidentiality
o See chapters on Autonomy & Consent, Mental Incapacity, Consent by Minors,
Substitute Decision Making and Confidentiality & Disclosure.

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Non-Maleficence
Non-maleficene is action oriented - cause no harm, Above all, do no harm
Exceptions to this principle arise frequently eg surgery can cause harm yet at the same
time be saving a patients life. If harm is caused then it must be justifiable.
Many bioethical issues require consideration of both beneficence and non-maleficence.
For example they are particularly apparent in decisions regarding the commencement of
dangerous therapy, or the withdrawal of therapy that is no longer thought to be beneficial.
A duty of cared is owed to avoid both actual harm and the risk of harm that may result
from medical intervention (note however that in the absence of damage a cause of action
based on negligence will fail)
If the standard of care is breached then negligence may result even if the breach is
unintentional and the health practitioner unaware that harm or risk of harm may follow
his/her action
For health care professionals the legal standard of care includes specialized knowledge,
skills and diligence as can be expected from the ordinary members of that profession
Overriding the Ethical Obligation to Treat
It is morally permissible to stop treating a patient if
the patient is brain dead
the patients death is imminent
the burdens for the patient override the benefits of the treatment
the quality of life available to the patient after treatment is not a meaningful life

Beneficence
Defined as doing active good, altruism, or conduct aimed at the well being of others.
Non-maleficence is about preventing harm, but beneficence is about positively intervening
to bring about good.
Requires that health practitioners provide both appropriate treatment and ensure that their
intervention will result in a net benefit.
A practical expression of beneficence requires judiciousness and genuine concern for the
well-being of the total society. Health professionals have responsibilities towards society,
not just to the individual patient.
Cost-benefit requirements must be taken into account in order to make wise use of scarce
resources. Recognition must be given to the financial limits of clinical medicine. We often
known of a better treatment, but are unable to use it due to its high cost.
Paternalism
Paternalism occurs when a patients autonomy is overridden due to a concern for beneficence.
There are two forms of paternalism based on the competency of the patient and
permanency / seriousness of the harm that may accrue
Weak paternalism beneficent action on behalf of people who are clearly not in a
position to make informed decisions themselves
eg decisions made on behalf of an intellectually disabled person who is unable to
make autonomous decisions

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Strong paternalism an approach based on the supposition that it is sometimes ethical

and proper for health care workers to effect beneficent actions even if the patient is
competent and disagrees with the action
eg a doctor sterilizing a woman because he believes that she should not bear any more
children, when the woman wants to continue child-bearing
Weak paternalism is generally accepted, but strong paternalism is no longer part of current
medical practice and is thought to be generally indefensible.

Justice

Fairness, rightness, equity, integrity but sometimes the general sense of the word does
not equate with legal sense of the word
In the general sense, justice refers to standards and expectations which any society holds
concerning relations between members of that society.
Notions of justice are often described in three ways:
Justice as fairness equality for all persons; in health sense suggests that all persons
irrespective of wealth, power, status, religion or affiliation should be offered fair
access to services which accord with their health needs. This is challenged by the
existence in our society of people, judged mainly on wealth or contacts, who are able
to gain service to treatments before other people in similar medical circumstances.
Comparative justice said to be comparative in that appropriate levels of health care
can only be accorded to individuals by weighing up the competing claims of other
people; necessary because of limited availability of resources. Resources must be
distributed on the basis of an impartial indicator such as need
Distributive justice distribution of resources on the basis of various moral, legal
and cultural rules that form the cooperative basis for society. We should strive for an
average or common good that protects against any neglect of the disadvantaged.
Guarantees essential services, even for those who lack wealth and power not a
system where everybody has access, but those who pay for private insurance are able
to access services at their convenience

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3. NEGLIGENCE
Medical negligence is not a separate tort; it simply involves the application of the principles
of negligence to medical practice. Negligence occurs where there is a failure to
take reasonable care within the doctor/patient relationship.

Elements of Negligence
Negligence has 4 elements
Duty of care is owed by the defendant to the plaintiff
o arises if is it reasonably foreseeable that damage will occur if care is not taken; and
o there is proximity between the parties (eg if a doctor-patient relationship exists)
Breach of the standard of care
o standard of care is that of an ordinary skilled person professing
that skill
o the standard is determined by the Court
o the existence of a breach is determined by a reasonable balance
between the magnitude & probability of risk, the difficulty of
avoidance, and the conflicting responsibilities of the defendant
(NB claims rarely if ever fail at this point)
Causation of damage
o causation must be determined by applying common sense to the facts of each
particular case1
o But for test but for the negligence would the damage still have occurred?
Remoteness of damage
o Is the damage of the same type that would be expected from the breach that
occurred?
From a theoretical perspective, damage is the gist of all causes of action
for negligence. Unlike actions for libel or trespass, if the plaintiff does not
prove actual or special damage, the plaintiff will fail in his action
altogether. Nevertheless, damage by itself is not a separate element of
negligence. The elements of causation and remoteness subsume the
concept of damage (given that neither can be shown in its absence). BUT
be warned Mal Parker considers that the four elements of negligence are
A Duty, Breach, Causation & Damage.

Duty of Care
A legal duty of care exists between legal neighbours (eg. a road user, the man next door, a
patient). This principle was set down by Lord Atkin in Donoghue v Stevenson [1932]
AC 562, a House of Lords case about a snail found in a bottle of ginger beer.
You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour. Who,

Stapley v Gypsum Mines Ltd [1953] AC 663 at 681 per Reid LJ

15
then, in law is my neighbour? The answer seems to be - 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 I am directing
my mind to the acts or omissions which are called in question.

Two tests must be satisfied for a duty of care to arise:

(i)
Is it reasonably foreseeable that the act or omission being contemplated could lead to
harm?
(ii)
Was there proximity between the two parties?
Reasonable foreseeability
It is not necessary to show that this particular accident and this particular damage were
probable; it is sufficient if the accident is of a class that might be anticipated as one of the
reasonable and probable results of the wrongful act [or omission]. 2

Proximity
For a duty of care to exist there must be a relationship of proximity between the two legal
actors. If no proximity exists then there is no duty of care. There are several types of
proximity recognized by the courts
o physical proximity (time/place)
o causal proximity (act/omission that caused the harm)
o circumstantial proximity (doctor/patient relationship)
It is presumed that there is a duty of care between certain sets of people, usually where a
fiduciary relationship exists between them. Thus when doctor sees a patient in his
professional capacity, a duty of care will always exist.
When does the Duty to Potential Patients Arise
Facts: Person had not been previously seen by the doctor. Called the receptionist
complaining of a severe headache and was scheduled for an appointment the next week,
but died that night from an aneurysm.
Decision: A duty of care exists once symptoms have been described. Patients seeking
appointments must be properly prioritized. (Receptionists owe a separate duty of care).
Duties of Medical Practitioners
The law imposes on a medical practitioner a duty to exercise
reasonable care and skill in the provision of professional advice and
treatment covering all the ways in which a doctor is called upon to
exercise his skill and judgment3

Common violations of the duty of care include

failure to attend
failure to attend an emergency
failure to make a house call
failure to examine
failure to diagnose
failure to take a medical history
error in diagnosis
failure to diagnose at an appropriate time
2
3

Haynes v Harwood [1935] 1 KB 146 at 156 per Greer LJ

Rogers v Whitaker (1992) 175 CLR 479

16

failure in treatment
failure to adopt recognized precautions
causing an injury to a patient while that patient is undergoing surgery
errors in treatment/failure to treat appropriately for a particular condition
failure to remove foreign objects inserted into the patient
departure from normal approved practice
failure to keep abreast of current state of knowledge
failure to refer
failure to advise/adequately inform of consequences and risks (disclosure of information
for decision-making purposes)
failure to explain or warn when something goes wrong
failure to follow-up

Duties to Third Parties

The duty of care can extend beyond the patient to persons that the patient has contact with.
BT v Oei (a Supreme Court NSW decision from 1999)
Failure to advise patient to have a test for HIV. It was foreseeable that if the patient had
HIV, he would transmit it to his partners (this is what happened).
The decision was based on the defendants knowledge of the serious risk, and the
plaintiffs lack of knowledge of the risk. This knowledge of risk constitutes circumstantial
proximity.

Standard of Care
Community standard vs Professional and Specialist standards
The standard of reasonable care and skill required is that of the ordinary skilled person
exercising and professing to have that special skill. This standard is to be determined by the
court, not by the profession - Rogers v Whitaker (1992) 175 CLR 479.4
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 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.

Factors that are taken into consideration by the court when determining the appropriate
standard of care include
public policy
community expectations
professional standards & codes of practice
the skill level that a person holds themselves out as having
circumstantial factors
urgency of situation (the context surrounding the act/omission)
4

An operation to correct vision in a blind eye carried with it a 1/14,000 chance of sympathetic opthalmia leading
to blindness in both eyes. She would not have had the operation if she knew of the risk.

17

eg laymen vs medical students vs doctors

Breach
The existence of a breach is determined by a reasonable balance between
the magnitude and probability of risk, the difficulty of avoidance, and the
conflicting responsibilities of the defendant (NB a claim of negligence will
rarely fail under this requirement).
There are objective and subjective components of this test.
Objectively: What would a reasonable person who saw the risk have done to avoid it?
Subjectively: The doctor needs to consider their knowledge of this particular patient, and
their special needs. For example, are they likely to attach particular significance to a
specific risk? Eg a singer will be particularly concerned about their voice, and a person
with sight in only one eye would be particularly concerned about losing sight in that eye.
When determining whether a practitioner has breached the requisite standard of care, the
Court will take into account different factors depending on the type of action
Diagnosis and treatment cases:
o Professional opinions will assist the court in determining whether the standard of
care has been met.
o Professional practices are relevant but not determinative.
Disclosure of risks/advice:
o Professional practices are less influential in determining whether a doctor has
acted reasonably.
o Breach 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 should take its
direction from what the court has indicated.

Causation/Remoteness of Damage
No action can be brought in negligence unless damage has resulted from the breach of the
standard of care. For example, a patient must provide evidence to demonstrate (rather than
just claim) that they would not have had an operation if they had been given different
information.
Causation of damage
There is no one test for causation. According to the courts causation should be determined by
applying common sense to the facts of each particular case.5
One of the commonly used tests is the but for test. To use this test simply ask But for
the negligence would the damage still have occurred? If the answer is No then
causation exists, if the answer is Yes then causation does not exist.
Eg. Consider the following facts - a person has lead poisoning but was told at the hospital
to go home and take an aspirin. They die overnight, but the poisoning was so bad that
even if they had received proper treatment they would still have died.
o Applying the Test: but for the failure to treat would the death still have
occurred? Yes = no causation.
5

Stapley v Gypsum Mines Ltd [1953] AC 663 at 681 per Reid LJ

18

Remoteness of damage
Is the damage of the same type that would be expected from the breach that occurred?

The Medical Indemnity Crisis

The Medical Indemnity Crisis
The medical indemnity crisis of the late 1990s has precipitated changes in various state
legislation, leading to reforms in medical negligence. Changes have been 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 changes:
NSW in 2001 introduced legislation to restrict damages awards in personal injury cases.
Qld in 2002 introduced legislation which capped large claims, streamlined legal
procedures, and encouraged structured settlements in preference to lump sum payments.
The Commonwealth has been pressured by the AMA to introduce changes and has
initiated an IPP Review of the Law of Negligence. The primary purpose of this review is
to propose common law reforms aimed at limiting both liability and the quantum of
damages arising form personal injuries and death.
o The IPP Review made various recommendations, some of which have been
incorporated into recent legislation such as the Civil Liability Act 2003 (Qld)
o This legislation has increased the influence of professional standards of practise in
determining the standard of care, although it does include an irrationality clause.
o Professional opinion is being held to increasingly higher standards of evidentiary
support than in previous years, largely as a result of development of EBM.

19

4. DUTY TO RESCUE
General Principle
At common law a person is under no duty to provide assistance to a person endangered in
circumstances unconnected with them (Fleming, The Law of Torts). Thus there is no duty on
the public at large to render assistance to anyone in danger or peril even where it is
foreseeable that a failure to assist will result in the injury or death of the person imperilled.
Exceptions: Although physical proximity does not give rise to a duty to rescue, causal and
circumstantial proximity can. It has been held that relationships of reliance and dependence
(such as the doctor/patient relationship) can create a duty to render assistance.

Causal proximity
eg A person who causes an accident has a duty to rescue
eg There is a duty to take reasonable care once a rescue has been commenced. 6 It is
enough to offer aid to someone in need of rescue I recall one case where a man who
passed a car accident offered to call an ambulance to the scene, but failed to so.

Circumstantial proximity
A doctor has a duty to a person they are examining.7
A lifeguard has a duty to rescue those under their supervision.
A captain of a ship has a duty to rescue any passengers who fall overboard.8

Despite the lack of a legal duty, there is still a moral and social duty to render aid to those who
are incapacitated or otherwise injured.
Cf Continental Europe, Eastern Europe and Latin America, where almost every country has a
statute or provision in its penal code stipulating a duty to rescue (Cadoppi, Failure to Rescue
and the Continental Criminal Law). Vermont, Minnesota and Quebec also have a duty.

Queensland Legislation
Motor Vehicle Accidents
Legislation imposes a limited duty to assist (limited by causal proximity).
Transport Operations (Road Use Management) Act 1995 (Qld), s92
Part 5 - anyone who is involved in an accident must remain at the scene, render
reasonable assistance and attempt to secure medical assistance.
Good Samaritan Legislation
In Queensland there is legal protection for medical practitioners who
attend and treat in emergency situations, but does not impose a duty to
attend. (Doctors do not have a duty to assist a road accident victim.)
6

Barret v Ministry of Defence [1995] 1 WLR 1217 a naval officer drank himself unconscious and was placed
in a recovery position, but died of asphyxiation by vomiting.
7
Thomsen v Davison [1975] QdR 93
8
Horsley v MacLaren (The Ogopogo) [1971] 2 Lloyds LR 410

20
Law Reform Act 1995 (Qld), s16

PART 5VOLUNTARY AID IN EMERGENCY

s16 Protection of medical practitioners and nurses and other prescribed
persons
Liability at law shall not attach to a medical practitioner, nurse or other person
prescribed under a regulation in respect of an act done or omitted in the course
of rendering medical care, aid or assistance to an injured person in circumstances
of emergency
(a) at or near the scene of the incident or other occurrence constituting the
emergency;
(b) while the injured person is being transported from the scene of the
incident or other occurrence constituting the emergency to a hospital or
other place at which adequate medical care is available;
if
(c) the act is done or omitted in good faith and without gross negligence; and
(d) the services are performed without fee or reward or expectation of fee or
reward.

Lowns v Woods
In Lowns v Woods (1996) ATR 81-376, a doctor was found negligent for not
attending a boy having an epileptic fit upon request. This suggests that
doctors may have a duty to rescue in medical emergencies.
Facts and Decision
A girl ran to a doctor living 400m up the road and told him her brother
was having a fit (an epileptic seizure). The doctor told her to call an
ambulance, which she said had already been done, and that they
needed a doctor, but he did not come. The boy suffered brain damage
due to a lack of oxygen sustained during the seizure.
The special circumstances of the case created a relationship of
proximity despite the lack of a prior doctor/patient relationship
Impact of the Decision
It is a NSW Court of Appeal case, so it is part of NSW law but not
Queensland law.
The decision itself was a 2:1 majority decision. The leading judgment
was delivered by Justice Kirby, who at that time was the President of
the NSW Appeals Division. Kirby now sits on the bench of the High
Court of Australia where he is known as a judicial activist. Kirbys
judgment contains very little legal reasoning, especially in comparison
with the dissenting judgment by Mahoney J. Thus we do not really
know on what basis he set aside the pre-existing legal principle that a
duty to rescue does not exist.
Under the Medical Practice Act 1938 (NSW) a failure to attend at an
emergency was considered to be professional misconduct, not
negligence. It is unusual for a court to expand the common law to

21

include situations that have already been considered and dealt with by
the legislature.
Lownes v Woods was not appealed to the High Court. It is my personal
opinion that, given the current composition of the High Court, if a
similar case were to come before it today then Lownes v Woods would
be overruled. If you want to see how a Queensland court would
probably deal with the case, then I suggest you read Justice Mahoneys
judgment.

22

5. AUTONOMY & CONSENT

The Concept of Autonomy
Autonomy asserts a right of non-interference when making decisions for oneself (ie a person
has the right to self-determination).
Just because an action is autonomous does not mean that it is legally or morally
acceptable.
Society limits the autonomy of its members in ways consistent with common sense, good
order, social intercourse and continual survival. This is done by the application of laws,
public policy, convention and etiquette.

The Test for Valid Consent

For consent to be valid there must be a voluntary decision by a competent, reasonably
informed person. The following elements must therefore be met
1) Competence the person giving the consent must be competent to do so
2) Reasonably Informed requires
a. Disclosure of material facts surrounding the intervention being consented to
b. Comprehension of those facts including both understanding and acceptance
of the information
3) Voluntariness the consent must be given freely, not under duress or undue influence

Competence

The law presumes that all people (except minors and the mentally incapable) are fully
capable and competent in conducting their own affairs. Included in this is the ability to
understand the nature and consequences of medical procedures.
The important question is whether a person is sufficiently competent to make a reasoned,
conscious, free, and autonomous choice in matters of health care, and not whether the
choice is the absolute best decision possible.
If a patient makes a decision and expresses his/her choice, the question of competence is
not normally raised.
Thresholds on the continuum of competence may vary in accordance with
a culture or societys standards (eg age 16 as a threshold for deciding on
contraception)
the risks and benefits involved in the decision
judgements regarding the relative importance of supporting a patients autonomy or
protecting them from harm
The most widely used medical test for mental competency is the Mini Mental State Exam
(MMSE), while more sophisticated tests also exist. But note that the legal definition of
mental competence is not the same as the medical definition. It is enough that the person
has competence for the making of a medical decision, regardless of their competence in
any other area.

23

In cases where immediate medical intervention is necessary to prevent or repair serious

harm, it is morally and legally permissible to forgo full disclosure in order to obtain a
valid consent.

Reasonably Informed
Nearly all major medical and research codes of ethics now hold that the patient has the right
to receive from the doctor all necessary information concerning diagnosis, treatment and
prognosis in terms in which they can understand, before a reasonable informed consent can
be given prior to the start of any treatment or procedure.
To be informed requires
appropriate disclosure of information from the doctor; and
adequate comprehension by the patient
Appropriate Disclosure
The duty of care for negligence requires adequate disclosure of information to the patient
Under professional standards the level of disclosure is left to the clinical judgement of the
health care worker.
involves an assumption that the patients best interests are open to clinical judgement
and that customary standard exists for all patient situations
it implicitly denies that patients are entitled to information uncontaminated by the
values of the medical profession, which infringes the patients autonomy
The courts have set up a dual standard for determining what is appropriate disclosure,
with both objective and subjective parts.
Objective test - the High Court of Australia has adopted the reasonable persons
standard of disclosure as the minimum requirement for determining whether
information is of sufficient importance to be disclosed. Whether a risk should be
disclosed is to be determined by the significance that a reasonable person would be
expected to attach to it, given the health problem in question.
Subjective test the subjective person standard of disclosure this test
supplements the reasonable person standard by requiring disclosure of additional
information that the particular patient would be concerned about

Factors determining what is appropriate disclosure by a careful and competent doctor

regarding the risks associated with a proposed treatment or procedure include
the nature of the matter to be disclosed
the nature of the treatment
the desire of the patient to be informed
the temperament and the health of the patient
the general surrounding circumstances

Adequate Comprehension
The patient must understand and accept the information - this is a central element of consent
and reflects the complexity of effective communication and sensitive information transfer in
the clinical relationship
Barriers that limit understanding include
insufficient information
poor interactional skills

24

inadequate communication (including excessive use of jargon, insensitivity to

linguistic, ethnic, or cultural barriers)
information overload
effects of non-acceptance or false beliefs, irrationality, illness, anxiety, and depression

Voluntariness

The patient must be able to exercise their choice free of manipulation, the undue influence
of others, or coercion. This can only be achieved when full disclosure has taken place and
competence has been established.

25

6. REFUSAL OF TREATMENT
Capacity to Refuse Treatment
Autonomy requires a respect for the every individuals right to do what (s)he wants, provided
it doesnt conflict with anothers rights. Treatment without consent constitutes both battery
in criminal law and trespass to the person in civil law.
Forms of Refusal
A refusal of treatment may occur in many ways including
Verbal refusal either explicit or implicit
Refusal by action eg refusing to sign a consent form or leaving the hospital
Formal legal means (see the chapter on Substitute Decision Making)
eg writing an Advance Health Directive that provides for treatment refusals in
advance
eg appointment of an attorney for health matters (under the Powers of Attorney Act)
who understands that the person would have wished to refuse treatment
Parents refusing on a childs behalf (see the chapter on Consent by Minors).
Validity of Refusal
Similar to consent, a valid refusal requires a voluntary, informed decision by a competent
person for a specific procedure.
Legal Rules
The legal rules regarding refusal are set out in Re T (Adult: Refusal of Treatment). T refused a
blood transfusion for a proposed caesarean section, following Jehovahs Witness doctrine.
Prior to surgery she contracted pneumonia and soon after went into labour. A blood
transfusion was clinically indicated. Allowed since the situation at hand was not the one that
she had considered.
RULE [1] - There is a presumption of capacity in adults
i)
Prima facie every adult has the right and capacity to decide whether or not he will
accept medical treatment, even if a refusal may risk permanent injury to his health or
even lead to premature death. Furthermore, it matters not whether the reasons for the
refusal were rational or irrational, unknown or even non-existent however the
presumption of capacity to decide, which stems from the fact that the patient is an
adult, is rebuttable. Re T per Lord Donaldson MR
ii)
This extends to refusing food and water. Secretary of State for the Home Department v
Robb (competent to make decision to engage in a hunger strike despite personality
disorder).
iii)
Later unconsciousness is irrelevant to a reasoned refusal. The right to personal
inviolability prevails, decisions must be respected. Mallett v Shulman
iv)
Statutory bodies can interfere despite an earlier refusal. Qumsieh v Guardianship and
Administration Board of Victoria (husband brought application before the board on
behalf of Jehovahs witness (his wife) in a coma).

26
RULE [2]
An adult may be deprived of his capacity to decide by
a) a long-term mental incapacity or retarded development
b) temporary factors such as unconsciousness or confusion or the effects of fatigue,
shock, pain or drugs. Fear (paralysing the will) Re MB and panic Re L (needle phobia)
are other incapacitating factors. Complete denial (Norfolk v W) is another form of
incapacity.
The temporary factors must be operating to such an extent that the ability to decide is
absent. Re MB
RULE [3]
Autonomy assumes the presence of adequate information and support to enable the person to
make a decision after consideration of all options.
i)
According to Justice Thorpe in Re C, medical decision- making is a three stage process.
There must be
a) Comprehension and retention of treatment information (see also Chatterton v Gerson)
b) Believing that information
c) and weighing it in the balance to arrive at a choice.
A fourth element was added by the English Law Reform Commission in 1995
d) Ability to communicate the choice to another.
ii)
Roff, Missel & Litz have listed 5 possible tests of competency on an ascending scale.
The courts usually use #5, but #4 has been used for patients who are upset or in denial
#5. Actual understanding does this patient understand this treatment?
#4. Ability to understand can the patient understand information that is as complicated
as the treatment information? Under this rule capacity is a variable standard. What is
necessary is the capacity to make decisions on a matter of that importance.
#3. Choice based on rational reasons can the patient express reasonable reasons behind
their choice?
#2. Reasonable outcome of choice has the patient made the choice that a reasonable
person would make?
#1. Evidence of choice has the patient expressed a treatment choice?
iii)
The key concept is understanding that the treatment will an indication that the
person can make sense of what they have been told and believes it to be true. A patient
must take the treatment information, believe it to be true, and apply it to their own
situation. It is not sufficient for the patient to be able to make sense of the information
if they do not also believe it.
A patients capacity to make decisions requires both comprehension of the situation and an
ability to foresee the consequences of their decision. If the patients desires are founded
on false or inconsistent beliefs or faulty reasoning, then the doctors should interpret,
educate and advise the patient in order to correct this problem as far as possible.

Ethical Dilemmas

Can accepting a patients refusal of treatment amount to abandonment?

Do patients have the right to refuse treatment if alternative treatment is more costly?
A significant number of elderly patients suffering from major depression will refuse life
saving treatment, but reverse their decision once their depression has been treated. Should
we continue to accept their initial refusals at face value?

27

Overriding Treatment Refusals/Treating Without Consent

RULE [1]
If an adult patient does not have the capacity to decide then it is the duty of the doctors to treat
him in whatever way they consider, in the exercise of their clinical judgement, to be in his
best interests.
F v West Berkshire Health Authority.
RULE [2]
An apparent consent/refusal may be inoperative in law for the following reasons (per
Staughton LJ):
i)
It was given as a result of undue influence or compulsion (not given voluntarily).
There must be such a degree of external influence as to persuade the patient to depart
from her own wishes to an extent that the law regards as undue. Refusal must be an
independent decision the relationship of the persuader is relevant per Lord
Donaldson MR
ii)
It may not have been intended to apply in the circumstances that have arisen. Was it
based upon assumptions that in the event have not been realised? Refusal in some
circumstances is not a refusal in all circumstances - Werth v Taylor. Re T (Jehovas
witness, pregnant incorrectly told no need for transfusion) a lack of the valid
information can vitiate capacity.
iii)
At the time of apparent consent/refusal the patient did not have capacity to make the
decision understanding/reasoning powers may be seriously reduced by drugs or other
circumstances.
NB. If the patient lacks capacity due to mental impairment then an Involuntary
Assessment must be sought see the chapter on Mental Incapacity, Self Harm & Forcible
detention.

28

7. CONSENT BY MINORS
Who is a Child?
The age of majority in all States and Territories of Australia is 18. In Queensland, a child is
defined as a person under 18 years.9
Law Reform Act 1995 (Qld)

PART 6AGE OF MAJORITY

s17 What is age of majority
The age of majority is 18 years.

Parental Rights v Child Rights

Parental rights to control a child do not exist for the benefit of the parent. They exist for
the benefit of the child and are justified only in so far as they enable the parent to perform
his duties towards the child and other children in the family.
The courts accept that growing up is a continuous process. In practice, most parents
relax their control gradually as the child develops and encourage him or her to become
increasingly independent.10
The rights of parents dwindle as the child approaches the age of majority, and the courts
will become more hesitant to enforce parental control against the wishes of the child. The
court does have the power to override the parents decision where it is in the childs best
interests to do so (eg the Jehovahs Witness cases).
As a general rule Courts will exercise their power according to a judgement of what is
best for the welfare of the child.

Consent to Treatment by Minors

The law relating to childrens consent to treatment is complicated. Some States have
legislation, while others rely on the common law. At common law a parent/guardian or the
Family/Supreme Court can consent to or refuse treatment for a child. The consent of either
parent will suffice, regardless of their marital status.
Young Children
A competent adult can consent to or refuse treatment even if it is against their best interests.
Young children, however, are neither competent nor autonomous. Thus their parent(s) or
guardian have the right to make decisions in childs best interests (as determined by the
parent).
Older Children the Mature Minor principle
A minor is capable of giving informed consent to treatment when he or she achieves
sufficient understanding and intelligence to enable him or her to understand fully what is

s36 Acts Interpretation Act 1954 (Qld)

Gillick v West Norfolk Area Health Authority [1986] 1 AC 112

10

29
proposed, and of expressing his or her own wishes.11 This depends on the rate of
development of each individual. To understand fully requires the ability to understand the
nature, consequences and risks of the treatment. Prior to the child attaining that level of
intellectual ability, parental consent is needed unless circumstances exist (emergency, parental
neglect, abandonment of the child).
A doctor can seek to persuade the child to tell his or her parents about the medical advice and
treatment they are seeking, or to gain permission from the child to inform his or her parents
himself, but that is not a legal requirement (Marions Case).
Gillick Competence
The House of Lords12 decision in Gillick v West Norfolk AHA is seminal. This case was about
the legality of a doctor prescribing contraception to a girl under 16 years of age, without the
consent of her parents. Mrs Gillick felt that as a parent she had an absolute right to be
informed of and to veto any medical advice or treatment being given to her daughters. The
decision of the judges was in favour of the doctor the daughters consent was sufficient.
Test of competence does the minor have sufficient mental capacity to understand the nature
and consequences of the medical advice/procedures involved.
It is for the doctor to assess the minors level of competence
Effectiveness of a Competent Minors Decision
A child may consent over a parents refusal, but a parental consent will override a childs
refusal so long as the treatment is in the child's best interests.13
Whether a minor also has the right to refuse treatment is still a matter of contention.
It is also possible for the Court to override a refusal of treatment by a minor where the
refusal is likely to result in serious injury.14
Overturning Parental Authority
There are some medical interventions that, as a general rule, are excluded from the scope of
parental consent or the minors consent. Any invasive, irreversible procedure where there is
significant risk of making the wrong decision about what is in the childs best interests will
usually fall outside the scope of parental powers.15 A court order authorising such procedures
is required. Examples include
donation of non-regenerative tissue
sterilization that is not a by-product of surgery to treat some other malfunction or disease
gender reassignment

11

Gillick v West Norfolk Area Health Authority [1986] 1 AC 112 per Lord Fraser, explicitly adopted by the High
Court case of Secretary Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218,
also known as Marions Case
12
The House of Lords is the British equivalent of the High Court of Australia
13
Re R (this is an English decision although it has persuasive authority for Australian courts, there has yet to
be an Australian decision on this point)
14
Re W an English case about a 16 year old anorexic patient (the competence of the patient in such a case will
also be open to question). See also Re M (1999) where a heart transplant was ordered by the court despite an
apparently competent refusal by 15 year old girl
15
Marions Case which addressed the issue of sterilization of a mentally disabled girl

30
Instances where health care professionals may act to protect the best interests of the child
include situations where there is
child abuse or neglect
parental incompetence
parental beliefs that impose unjustifiable burdens on the child; or
parental insistence on continuing treatment in the face of evidence that treatment is futile
blood transfusions for Jehovahs Witness children
The courts have parens patriae power (the power to decide in place of a parent) which are
exercised on behalf of the communitys interest in children.
Legislation
Mental Health Act 2000 (Qld) allows minors over 16 to obtain psychiatric treatment without
parental consent.

Legal Position in Other States

South Australia
Consent to Medical Treatment & Palliative Care Act 1995 (SA)
Minors over 16 can consent to or refuse treatment
No AHDs till 18
Minors under 16 can consent if they are competent and treatment is in their best interests
New South Wales
Minors over 14 can consent to treatment

Gaining Consent to do Medical Procedures on Minors

When dealing with a minor, the standard approach is to
1) Obtain a recommendation for the medical procedure
2) Obtain further expert opinions as necessary
3) Check whether procedure is special, i.e. is there a difficult ethical issue, is it
irreversible and grave, or a life-threatening situation?
4) A court order may then be required for performance of the procedure.

Law Reform Commission Recommendations

The recent Queensland Law Reform Commission into the competence and capacity of minors
focused mainly on changing the treatment of minors when they appear before the Court as
witnesses. The following recommendations come from the NSW LRC, which looked more at
capacity to consent to medical procedures.
Over 16, if competent then treat as an adult
Under 12, parental consent required
From 12 15, consent if competent is valid
health care must be in the best interests of the minor
Contraception is OK if in best interests of the minor, even if they are not competent

31

Confidentiality follows competence

32

8. RIGHTS OF THE CHILD

Recognized Rights of Children
Right to identity

health care and education, interference with family life, protection

from abuse, neglect or exploitation, entitlement to social security,
freedom of expression, association and information

Right to survival

food, shelter and health care

Right to protection from abuse, neglect and exploitation, including special protection
during war
Right to develop

in a safe, non-discriminatory environment

Developmental Characteristics of Mature Minors

Need for privacy

Strong identification with peers
Rejection of parental authority
Assertion of capacity for responsibility
Decision-making competence (some contexts)
Continuing dependence on family & parents in the presence of assertions/rejections (but
lack of awareness of this)

Duties of Parents/Carers Under the Criminal Law

Chapter 27 of the Criminal Code 1899 (Qld) imposes legal duties on parents, guardians or any
other adult in charge of a child.
Duty to provide the necessaries of life (s285)
Any person who has charge of another who is unable due to age, sickness, unsoundness of
mind etc to provide themselves with the necessaries of life must provide such. Whether one
person has charge of another is a matter of fact, except where the law imposes the charge.16
Duty of a person who has care of a child (s286)
It is the duty of any person who has care of a child under 16 years to (a) provide the
necessaries of life (b) to take reasonable precautions to avoid danger to the childs life, health
or safety and (c) to take reasonable action to remove the child from any such danger.
A person who negligently breaches these duties is held to have caused any consequences to
the life or health of the child that result from the omission.17
16
17

R v Macdonald and Macdonald [1904] St R Qd 151

R v Young [1969] Qd R 417

33

Neglect means the omission to take such steps as a reasonable parent would take. 18
Necessaries of life are such necessaries as tend to preserve life 19 (eg food, clothing, shelter
and care) and can include medical attention20 and surgical procedures21. Where death results
from the gradual development of a disease, life is endangered as soon as the disease has
reached the stage at which there exists a reasonable possibility that death will ensue if medical
attention is not obtained.22
Conscientious or religious objection to the use of medicine is not a defence.23
In the House of Lords case R v Sheppard and Sheppard24 about a failure to seek medical care
it was held that a jury must be satisfied that (a) the child did in fact need medical aid at the
time the defendant was charged with failing to provide it; and (b) either the defendant was
aware at the time that the childs health might be at risk if medical aid were not provided or
that was unaware due to his not caring whether the childs health was at risk.
Child Cruelty (s364)
A person who has charge or care of a child under 16 years that causes suffering to a child by
failing to provide (or take all lawful steps to obtain) adequate food, clothing, medical
treatment, accommodation or care
deserting the child or
leaving the child without means of support
commits a crime (maximum penalty 7 years imprisonment).
The Right to Life
For the purpose of murder or manslaughter the criminal law defines a child as a person when
they have proceeded in a living state from the body of its mother (s292). Killing of an unborn
child is a crime under s313 (see the section on Abortion).

International Human Rights Conventions

Australia has ratified the International Convention on the Rights of the Child. As explained in
Chapter 1, however, international treaties are only part of Australian law in so far as
legislation has been enacted or amended to give effect to it. Thus there is no cause of action
available to an individual under Australian law on the basis of a failure to met the obligations
set out in the articles of the Convention. On the other hand, where a separate cause of action
already exists under Australian law, it is possible to argue that the law should be interpreted in
such a way as to give effect to Australias treaty obligations.

18

R v Senior [1899] 1 QB 283

R v Brooks (1902) 5 Can Crim Cas 372
20
R v Macdonald and Macdonald, supra
21
Oakey v Jackson [1914] 1 KB 216
22
R v Moore
23
R v Senior, supra
24
[1981] AC 394
19

34

9. SUBSTITUTE DECISION MAKING

Making Decisions for an Incompetent Patient
Consent must be obtained before treating a patient even if the patient is incompetent. Statute
law sets out who can make decisions when the patient is incapable of doing so.
Powers of Attorney Act 1998 (Qld)
Recognises Advance Health Directives become effective whenever the person who
made it has impaired capacity.
Allows the appointment of an attorney under enduring powers of attorney. Such a
person can attend to financial and personal matters of the person, including health care.
Authorises a Statutory Health Attorney to make decisions about health care matters for a
person who lacks capacity usually their next of kin.
Guardianship and Administration Act 2000 (Qld)
Establishes the Guardianship and Administration tribunal.
o This body has a role in substituted decision-making by appointing Guardians and
Administrators.
Covers health and special health care.
Creates and defines the positions of the Adult Guardian and Public Advocate.
Sets up the Community Visitor program.

Who can make decisions

Hierarchy of Decision-Making
In order of priority:
(i)
Competent patient
(ii)
Advanced health directive (if it covers the specific situation)
(iii)
Guardian (if one is appointed)
(iv)
Attorney under enduring power of attorney (appointed under the Power of
Attorney Act) can make decisions/act on a persons behalf in personal matters
eg finance, health etc.
(v)
Statutory health attorney spouse, carer, etc.
(vi)
Adult guardian:
o An independent statutory officer appointed by the Guardianship and
Administration Tribunal (set up under the Guardianship and Administration
Act) to protect the rights and interests of adults with impaired capacity.
o Inherent problem the patients best interests are being assessed by another.
(vii) Guardianship and Administration tribunal
(viii) Mental Health Act (involuntary patient)
Obligations of Decision Makers
The appointed attorney must, to the greatest extent possible:

35

Seek the adults views and wishes.

Take information given by the adults health provider into account.

Where two treatment options are available the choice must be the least restrictive alternative.
Substitute Decision Makers for an Incompetent Patient
(1) Attorney with an enduring power of attorney (appointed under the Power of Attorney Act)
Someone appointed by the patient to make decisions on their behalf when they are
incompetent to do so.
The 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 they live with.
o Financial matters such as doing the persons banking.
(2) Statutory Health Attorney
First available and culturally appropriate person. In order of priority:
o Spouse
o Persons 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).
Their 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 on a persons behalf.
Can be responsible for making decisions on health matters on behalf of adults with
impaired capacity when:
o No attorney has been appointed.
o There is a dispute between attorneys.
o There has been a breach of duty by an attorney or guardian.

Advance Health Directives

Purpose of AHDs
Advance Health Directives are ethically based in the concept of autonomy. They
represent an attempt to extend self-determination beyond competency
allow the projection of an individuals wishes forward to a period of anticipated
incapacity and thus assume that patient choices will remain stable over time
provide a person with the means to avoid the possibility that quality of life decisions will
be made by others, eg whether their quality of life is such that it is still worth living
represent the only way that life-sustaining measures for incompetent patients can occur

36

reflect community concern about loss of mental faculties and control, particularly at the
end of a persons life

Formalities of AHDs
There is legislation in Qld, Vic, NT, ACT, SA allowing patients to make AHDs or living
wills that will operate in the event that they are incompetent when the time comes to make
medical decisions. Under the Queensland legislation an AHD
Can be made by anyone over the age of 18.
Must be put down in writing and signed by a doctor, an independent witness, and the
patient.
Can be used as decision-making tools in end of life decisions.
May extend to the right to refuse treatment.
Only allows for consent to legal procedures (eg cannot be used to justify euthanasia)
o AHDs act in patients best interests when the patient is deemed competent to give
such direction euthanasia is not considered to be a legal or competent decision.
Only become active when decision-making capacity is impaired.
Usually include general instructions to be followed whenever the patient cannot speak for
themself.
May include specific instructions regarding treatment of terminal illnesses.
Non-Compliance with an AHD
An advance health directive may be disregarded if it
includes terms which are uncertain or contradictory
is contrary to good medical practice
is inappropriate because circumstances have changed
is inappropriate because of advances in medical science
When a doctor is considering deviation he should consult with the adult guardian.

37

10. MENTAL INCAPACITY, SELF-HARM & FORCIBLE

DETENTION
Consent for the Mentally Impaired, Retarded, and Incapable
Psychosis clearly has an impact on higher cognitive functions. The intellectually retarded and
incapable often lack the capacity for rational decision making, and are therefore unable to
provide a valid consent to medical intervention. In cases of mental illness this can be a
temporary rather than an ongoing state.
Consent to treatment can be impaired by:
Acute psychosis, while mostly transient, can dramatically alter judgement and
interpretation of both external events and internal experiences.
Patient may withhold consent due to a delusion that the treatment is meant to harm
rather than to help them.
In these circumstances the doctor must weigh up the civil liberties of the individual patient
against the impact of not treating on the welfare of both the patient and the wider community
Legal Framework
Statutory provisions in Mental Health Act 2000 (Qld) allow treatment to be given without
consent to compulsory institutionalized psychotic patients.
In other cases of mental incapacity the doctor is encouraged to include the patients family
in medical decisions - see the requirements set out in the Guardianship & Admin. Act
Mental Health Act 2000 (Qld)
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 Mental Health Act introduces a much tougher requirement for involuntary assessment
and treatment than was previously the case, and requires that consideration be given to
making an assessment or providing treatment in a less restrictive environment.
Requires that involuntary treatment take place in an environment that ensures the patient
is adequately informed, and that allows an opportunity for collaboration.

Involuntary Assessment & Treatment under the Mental Health Act

The Mental Health Act 2000 (Qld) Contains provisions for
1) Definition of mental illness
2) Initiating involuntary assessment of persons with a mental illness.
3) Authorising involuntary treatment of those persons.
4) Independent review of involuntary treatment and patient rights.

38
Definition of Mental Illness
The Mental Health Act includes the following definition of mental illness
A condition characterised by a clinically significant disturbance of thought, mood,
perception or memory
Eleven 11 exclusions from the definition are also listed, including behaviours, conditions
or circumstances that cannot on their own be considered mental illness. Eg a persons
race, previous treatment for mental illness or antisocial/illegal behaviour.
Initiating an Involuntary Assessment
Two assessment documents must exist before a person can be assessed without their consent,
a request for assessment and a recommendation for assessment. Different people must
make the request and recommendation, and the person making the request cannot be a relative
or employee of the person making the recommendation.
(i) Request for assessment
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.
(ii) Recommendation for assessment
Can be made by any doctor or an authorised mental health practitioner who has examined
the person in the last 3 days.
The doctor or authorised mental health practitioner must be satisfied that all of the criteria
for involuntary assessment apply.
Criteria for Involuntary Assessment (Mental Health Act s13)
o The person appears to have a mental illness;
o The person requires immediate assessment;
o The assessment can properly be made at an authorized mental health service;
o There is a risk that the person may:
Cause harm to himself or herself or someone else; or
Suffer serious mental or physical deterioration;
o There is no less restrictive way of ensuring the person is assessed; and
o The person:
Is lacking the capacity to consent to be assessed; or
Has unreasonably refused to be assessed.
The recommendation is effective for 7 days.
(iii) Bypassing this Requirement
If there are problems getting the request and recommendation for assessment (eg the patient is
uncooperative, violent or on the run) then the following exceptions apply
1. A Justices examination order may be made by a Justice of the Peace or a Magistrate.
This empowers a doctor or 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. This authorises a person to be taken to an

39
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).
Becoming an Involuntary Patient
After the initial requirements are met a health practitioner or ambulance officer can take the
person to an authorised mental health service for assessment. Note that police are not
automatically involved in this process but their assistance must be provided if requested.
At this point the person becomes an involuntary patient, which means that they may be
assessed without their consent.
The patient can nominate an allied person to help represent their views, and is entitled to
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, but
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
that the patient is accepted on arrival at the mental health service location.
The purpose of involuntary assessment is to determine if the person requires involuntary
treatment.
If all of the criteria apply then an involuntary treatment order can be made to
authorise the involuntary treatment of a person.
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 Assessment (Mental Health Act s14)

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

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.
Involuntary treatment orders must be accompanied by a treatment plan that outlines the
o proposed treatment
o treatment frequency
o method and place of treatment
o rehabilitation and other services to be provided
o intervals for regular assessment

40

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 must be conducted by the psychiatrist as outlined in the treatment plan.
In addition, reviews by the Mental Health Review Tribunal must occur within 6 weeks of
an involuntary treatment order being made and then at 6 monthly intervals or on
application.
Safeguards
The Mental Health Act has several safeguards to ensure that patients cannot be detained on
the opinion of one person alone and to ensure that their detention is monitored and regularly
reviewed. These provisions have been enacted to ensure that involuntary treatment takes place
in an environment where the patient is adequately informed, has the opportunity to collaborate
and has better access to Review processes.

Effect of Advance Health Directives

In the absence of informed consent, involuntary admission under the Mental Health Act is the
most common means by which treatment is provided to the mentally ill. Another option
however is to make an Advance Health Directives under the Powers of Attorney Act 1998
(Qld). An ADH allows a person to arrange in advance for consent to be given whenever they
lose their mental capacity (see the chapter on Substitute Decision Making).
A person with psychotic illness could, while well, write an Advance Health Directive that
covers the situation of clinical deterioration requiring hospitalisation for treatment
includes specific advice regarding authorised action in the situation of treatment
A question will arise if the clinicians view is in conflict with the Advance Health Directive
eg the patient outlines that ECT is not to be used, but the clinician determines that it is in the
patients interests to have an ECT done.
The Powers of Attorney Act states that the expressed wishes of the patient should be taken
into account, but that when these are inconsistent with the Mental Health Act the Mental
Health Act prevails.
Since disorders such as schizophrenia affect higher cortical function even outside the times of
acute episodes, questions may be raised about the patients capacity to provide informed
consent generally.
Once again if the Advance Health Directive is in conflict with the Mental Health Act the
Mental Health Act will prevail.

41

11. CONFIDENTIALITY & DISCLOSURE

The Duty of Confidence
Common Law
The general principle is that any information acquired by a doctor by reason of their
professional relationship with a patient must not be disclosed to any third party. This duty
extends to family members, and continues to bind the doctor even after the patient has died.
Rationale patients must not be afraid to seek the advice of doctors, and doctors must be
free to ask their patients any question necessary for diagnosis and treatment.
Therapeutic role helps ensure follow-up, allows time for others to become involved
Problems may be too individualistic, doesnt allow group/family involvement
The patient also has a right to expect that information will be used only for the purpose for
which it was given (eg for diagnosis/treatment, not for research).
This is a fiduciary duty that arises under the law of equity. It has nothing to do with the
duties that arise under either contract law or tort law.
Statute Law & Professional Codes of Conduct
An obligation to maintain confidentiality is imposed in several statutes, including
Health Services Act 1991 (Qld), s63 (see below for a partial extract)
Health Practitioners (Professional Standards) Act 1999 (Qld), s392 (information
arising in hearings before the Medical Board etc)
Privacy Act 1988 (Cth)
Everyday Failures in Confidentiality
Corridor consultations, eg completing consultations as you move from the 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, eg allowing charts, results or computer screens to be viewed by patients or
other unauthorised people.
Providing details on medical certificates which are not authorised by the patient.
Failure to educate staff (such as receptionists).
Exceptions
Breaching patient confidentiality is not merely a matter of weighing the benefits and harms. It
should be regarded as exceptional and requires robust justification to be legal. Information
can however be divulged/disclosed if
the doctor has obtained permission/consent from the patient
the doctor is required to do so under law (eg. under subpoena)
the health of the patient or others is at risk
the information is already within the public domain (but this has limited applicability)

42

Disclosure of Patient Information

Although the law recognizes the importance of confidentiality it also allows and even
encourages disclosure of information where it is legally permissible to do so.
Common Law
(1) The patient voluntarily consents to the disclosure of their confidential information.
Consent to disclosure of a patients information can be either express (orally or in writing)
or implied (where other members of a health care team are involved in their care).
Situations of implied consent include medical certificates for work, referrals to
specialists, writing prescriptions and reports to third parties (eg insurance company).
The patient must understand what information is being proposed to be disclosed.
Only the information that the patient agrees to disclose can be given to a third party.
(2) Disclosure can be made if there is an overriding duty towards the public
This occurs if there is a risk of harm from non-disclosure that outweighs the risk of
damage to the public interest in maintaining confidentiality.
There must be a serious and immediate risk of harm that will be reduced by the
disclosure.
The disclosure should be of the minimal amount possible to avert the risk.
Eg the patient is about to commit a violent crime (this extends to the situation where an
HIV infected patient is irresponsibly placing others at risk)
Statute Law
(3) Disclosure is mandated under Statute for notifiable conditions (see the chapter on
Notification) such as
births and deaths
peri-natal statistics
notification of infectious diseases & sexually transmitted diseases
notification of cancers
child abuse
medical fitness eg to drive
blood alcohol readings
notifications to coroners
Disclosure under the 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:
Doctors may be required to attend and provide evidence in criminal matters, and
medical records may be subpoenaed.
Privilege does not apply to the doctor-patient relationship.
(4) Medical research
Involves technical breaches of confidentiality.
Subject to legislation such as the Privacy Act which protects personal details.
Epidemiological research is dependent on access to records can be carried out in a way
which de-identifies patients.

43

Medical Records
Recording Information
Patients have the right to expect that information they give will not be subject to unauthorised
access or disclosure, and that their records will be kept up to date and correct.25
Records should contain sufficient information to enable another doctor to carry on
management of the patient (this gives rise to a duty of care under the law of negligence).
When determining whether to record sensitive information that the patient reveals, doctors
should have regard to
the significance of the information (whether it should be recorded)
the level of detail they should record
the security of the medical record
Doctors should exercise caution in recording highly personal information in a patients
record and in some cases should seek express consent to do so (Breen, Ethics, Law &
Medical Practice, p39)
* Note that it is not a breach of the duty of confidence to record information about a patient.
Breach only occurs if a third party gains access to the information.
Ownership
Medical records and the information they contain legally belong to the doctor, not the
patient.26 Note however that the trend in recent Court decisions has been to give patients
greater rights with respect to their records.
Access to Medical Records
At common law patients do not have a right of access to their medical records. 27 This position
has been altered by the Privacy Act 1998 (Cth), which entitles patients to access their publicly
held records.

When a patient specifically asks that information not be recorded

There is no legal principle that would prevent a doctor from recording the information, BUT
if the information was later obtained by or released to a third party, a breach of confidence is
much more likely to have occurred.
Although I havent found any case authority on this point, it is likely that the Judge in
such a case would have to weigh up the competing rights and duties of the patient and
doctor. Relevant considerations would include
the duty of the doctor to maintain an accurate and complete record
the importance of complete medical records in protecting a doctor against unfounded
allegations or complaints
the need for the privacy of patients to protected
the likelihood of the information being released
25

Privacy Act 1988 (Cth)

Breen v Williams 1996 HCA
27
Breen v Williams 1996 HCA
26

44

the autonomy of patients with respect to their treatment

Suggested Approach
1) explain to the patient why it is in their interests for the information to be recorded
2) explain how the information is safeguarded so that third parties cannot get access
3) ask the patient to consent to the recording of the information
Health Services Act 1991 (Qld)
s63 Confidentiality
(1) An officer, employee or agent of the department must not give to any other person, whether
directly or indirectly, any information acquired by reason of being such an officer, employee or
agent if a person who is receiving or has received a public sector health service could be identified
from that information.
Maximum penalty50 penalty units.
(2) Subsection (1) does not apply
(i)
to the giving of any information that an officer, employee or agent is expressly authorised or
permitted to give under this or any other Act or that is required by operation of law; or
(ii)
to the giving of information with the prior consent of the person to whom it relates or, if the
person has died, with the consent of the persons spouse or, if the spouse is not reasonably
available, the senior available next of kin of the person; or
(iii)
to the giving of information concerning the condition of a person who is a patient in, or is
receiving health services from, a public sector health service if the information
(i)
is communicated in general terms by a health professional in accordance with the
recognised standards of the relevant medical or other health profession; or
(ii)
is communicated by a member of the medical staff of a public sector health service to
the next of kin or a near relative, including a spouse, of the patient in accordance with the
recognised standards of medical practice; or
(iv)
to the giving of information to the Australian Red Cross Society for the purpose of tracing
blood, or blood products derived from blood, infected with any disease or the donor or recipient of
any such blood; or
(v)
to the giving of information required in connection with the further treatment of a patient in
accordance with the recognized standards of the relevant medical or other health profession; or
(vi)
to the giving of information to an official that is relevant to the performance of the officials
functions stated in the officials instrument of appointment; or
(vii)
to the giving of information to the Commonwealth or a State, or an entity of the
Commonwealth or a State, by the chief executive if the giving of the information
(i)
is determined by the chief executive to be in the public interest; and
(ii)
is required to or may be given under an agreement that
(A) is between Queensland and the Commonwealth, State or entity; and
(B) is prescribed under a regulation for this paragraph; or

Penalties and Sentences Act 1992 (Qld), s5

1 penalty unit is currently equal to $75.

45

12. NOTIFICATION
Principles of Notification
Notification aims to protect the community from foreseeable harm. Notifying the appropriate
authorities of relevant information allows the following to take place
Research into patterns of disease and predictions about disease behaviour.
Identification of clusters of disease to research, contain and prevent.
Treatment of individuals with disease and minimization of the spread of disease through
education, contact tracing and coercion.
Planning service delivery according to disease pattern and behaviour.
Allocation of resources to best effect.
Identification of the side effects of drugs in order to reduce future risk.
Prevention of road accidents.
Ethical Issues
It is necessary to balance disease containment against infringements of civil liberties.
Must minimize breaches patient confidentiality.
Need to encourage individual responsibility to minimize community risk.
Protect the privacy of those with diseases or other conditions and prevent discrimination
against them.

List of Notifiable Conditions

Notifiable conditions are medical conditions of significance to public health. Statutory
protection is provided to those who must break confidences to make notifications for
Births/deaths
Peri-natal statistics
Notifiable diseases, e.g. HIV/AIDS
Cancer
Child abuse
Immunisation
Blood alcohol
Drug dependent persons
Criminal notifications
Voluntary notifications may also be made for
Adverse drug reactions
Medical fitness to drive
Pap smear register
Deaths
Notified under the Births, Deaths and Marriages Register 1995

46

Death certificates needed for the family, medical and legal purposes. They also enable
tracing of patterns of health and assist in directing health care resources and research.

Information recorded on death certificates 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

Cancer
The cancer register records information including both individual and aggregate statistics
Notifications are received from
o Hospitals
o Pathology labs
o Private practitioners
o Death certificates
o Autopsy results
Cancer notification required for
o Information used in epidemiological or clinical studies regarding incidence
o Health resource planning
o Survival rates statistics

Mandatory Notification of Diseases

Public health statutes in all Australian jurisdictions make provision for mandatory notification
of certain diseases. Schedules of such diseases are set out on a State-by-State basis.
In Queensland the relevant legislation is Part 3, Division 2 of the Health Act 1937 (Qld).
Data from all of the States are collated by the National Notifiable Diseases Surveillance
System, which has a good homepage on the web and has released several reports.
Notification of infectious diseases is necessary for
Prevention of secondary spread prophylaxis for contacts at risk (contact tracing and
stopping risky behaviour are part of the public health response to disease notifications).
Monitoring disease trends.
Detecting clusters or outbreaks of disease.
Improving our knowledge of disease determinants.
When does the Duty to Notify Arise
Notice must be given to the Chief Health Officer if, upon examining or treating a patient,
a medical practitioner believes that the patient is suffering from or has symptoms of a
notifiable disease s32A(1).
Notice is also required from the person in charge of a pathological exam if it shows the
presence of a notifiable disease s32A(4)

47

Notice must also be given to the medical superintendent if the patient is in a public
hospital s32A(2)

Formalities of the Notice

The notice must state the nature and date of onset of the disease or symptoms, the date the
practitioner formed their belief, and the name, gender, address, age, occupation, and ethnic
origin of the patient s32A(3)
Notice based on a pathological exam must specify the nature of the disease, the results of
the test, the name and gender of the patient, and the name of the referring practitioner
s32A(5)
When name and address are required, it is sufficient to provide a reference code which the
person giving the notice can later use to deduce the patients name and address s32A(8)
Patients are required to divulge the name and address of anyone that may have
communicated the disease to them or contracted it from them, and any information
concerning the circumstances of such communication s32B
Where a school child is suspected of having a notifiable disease, the Chief Health Officer
may authorise a medical officer to enter any house and examine any residents therein for
presence of infection or carrier status s47(3)
Powers of Detention
Detention is possible if a person suspected by a medical practitioner of having a notifiable
disease refuses testing, examination or treatment, but only if certain conditions are met
see ss36, 37 of the Health Act
The CHO may, with Ministerial approval, establish and maintain any place for the
temporary isolation and treatment of any person that they believe is suffering from a
notifiable disease s35
A detained person must remain for a period that the CHO deems necessary for their proper
treatment or isolation s36(4), and reasonable force may be used to enforce such
detention/treatment/testing s36(5)
The Governor may make orders withholding children from school in cases where they are
suffering from a specific disease s47(1)
Penalties for Breaching the Health Act
Failure to notify or false notification under s32A 10 penalty units
Refusal to divulge information under s32B 20 PU
Deliberately or recklessly placing another at risk of infection from a controlled notifiable
disease 150 PU or 18 mth imprisonment
Deliberately or recklessly infecting someone with a controlled notifiable disease 200 PU
or 2 yr imprisonment
o Note that the last two penalties are completely separate from any possible criminal
charges for assault/grievous bodily harm that might arise from the same incident
Penalties and Sentences Act 1992 (Qld), s5
1 penalty unit is currently equal to $75.

48

Which Diseases are Notifiable

The diseases and disabilities set out in Schedule 2 of the Health Regulation 1996 (Qld) are
notifiable diseases and controlled notifiable diseases for the purposes of s32(1) and
s48(1) of the Health Act (see ss202, 203 of the Health Regulations) see below.
Regulations can be altered by a notice published in the Government Gazette eg Human
immunodeficiency virus was declared a notifiable disease by gazettal on 4 June 1988.

Health Regulation 1996 (Qld)

SCHEDULE 2
NOTIFIABLE AND CONTROLLED NOTIFIABLE DISEASES
PART 1 NOTIFIABLE DISEASES
acute flaccid paralysis
acute rheumatic fever
adverse event following vaccination
AIDS (acquired immune deficiency syndrome)
anthrax
arbovirus infections, the following types
alphavirus infections, including Barmah Forest, getah, Ross River and sindbis viruses
bunyaviruses infections, including gan gan, mapputta, termeil and trubanaman viruses
flavivirus infections, including alfuy, dengue, Edge Hill, Japanese encephalitis, kokobera, kunjin,
Murray Valley encephalitis, Stratford, yellow fever and unspecified flaviviruses
any other arbovirus infection demonstrated to cause human disease
atypical mycobacterial infection
botulism (foodborne)
botulism (intestinal - adult)
botulism (intestinal - infantile)
botulism (wound)
brucellosis
campylobacteriosis
chancroid
chlamydia trachomatis infection (genital)
chlamydia trachomatis infection (lymphogranuloma venereum)
chlamydia trachomatis infection (non-genital)
cholera
ciguatera
cryptococcosis
cryptosporidiosis
diphtheria
donovanosis (granuloma inguinale)
echinococcosis (hydatid disease)
food-borne or waterborne illness in 2 or more associated cases
gonococcal infection (genital)
gonococcal infection (non-genital)
haemolytic uraemic syndrome (HUS)
haemophilus influenzae type b infection (invasive only)
haemorrhagic fevers (quarantinable), including Crimean-Congo, Ebola,
lassa fever and Marburg viruses
Hendra virus infection
hepatitis A
hepatitis B (acute)
hepatitis B (chronic)

49
hepatitis B (not otherwise specified)
hepatitis C
hepatitis D
hepatitis E
hepatitis (other)
HIV (human immunodeficiency virus) infection
influenza (laboratory confirmed)
lead exposure
legionellosis
leprosy (Hansens disease)
leptospirosis
listeriosis
lyssavirus (Australian bat lyssavirus)
lyssavirus (rabies)
lyssavirus (other)
malaria
measles
melioidosis
meningococcal infection (invasive)
mumps
ornithosis (psittacosis)
pertussis
plague
pneumococcal infection (invasive)
poliomyelitis
Q fever
rabies (refer to lyssavirus)
rubella, including congenital rubella
salmonellosis
SARS (severe acute respiratory syndrome)
shiga-like toxin producing E.coli VTEC/SLTEC
shigellosis
syphilis, including congenital syphilis
tetanus
tuberculosis
typhoid
yellow fever (refer to arbovirus infections)
yersiniosis
PART 2 CONTROLLED NOTIFIABLE DISEASES
AIDS (acquired immune deficiency syndrome)
chancroid
chlamydia trachomatis infection (genital)
chlamydia trachomatis infection (lymphogranuloma venereum)
chlamydia trachomatis infection (non-genital)
donovanosis (granuloma inguinale)
gonococcal infection (genital)
gonococcal infection (non-genital)
hepatitis A
hepatitis B (acute)
hepatitis B (chronic)
hepatitis B (not otherwise specified)
hepatitis C
hepatitis D

50
HIV (human immunodeficiency virus) infection
leprosy (Hansens disease)
syphilis, including congenital syphilis
tuberculosis

* emphasis added

51

13. PROFESSIONAL SELF-REGULATION

Professional Standards
Source of Professional Self-Regulation
Originally only four occupations were considered to be professions doctors, lawyers,
soldiers and the clergy. Doctors guard peoples health, lawyers guard their freedom, soldiers
guard their lives and the clergy guards their souls. These four professions had a special place
within society due to the power that they were entrusted with, and operated under strict ethical
codes of conduct. Due to the trust reposed in them, the professions were given the power of
self-regulation over their members. Today oversight of the medical profession is stronger than
ever, but self-regulation of the profession has been retained in many forms.
The medical profession in Queensland is currently regulated by the Health Practitioners
(Professional Standards) Act 1999 (Qld). 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 profession.
Provide a uniform system to deal with complaints, investigations, and disciplinary
proceedings relating to registrants and the management of impaired registrants.
Provide a system of complaints about registrants.
Link between Evidence Based Medicine 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

Develop clinical practice guidelines

Implement clinical practice guidelines

Back to start and identification

No

RCT or other research

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The Medical Board of Queensland

The Medical Board is set up under the Health Practitioners (Professional Standards) Act
Purpose 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.
Comprised of the Chief Health Officer and 6-10 other appointed members including
o Three members nominated by the Minister for Health.
o Three members nominated by the AMA (registrant members).
o One consumer/public representative.
o One barrister or solicitor of the Supreme Court.
A majority of members must be registrants (ie members of the medical profession).
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 an examination and/or medical
Types of registration include:
o General, Provisional, Specialist & Special purpose
(ii) Complaints
Receive complaints and consults 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.

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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.
Assists practitioners to stay in the workforce wherever possible.
Non-punitive rehabilitation with professional support.
May involve participation in the boards 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.

The Health Practitioners Tribunal

The Health Practitioners Tribunal is a branch of the District Court that can hear cases where
suspension or deregistration is a likely outcome.
The tribunal can be constituted by any one District Court Judge assisted by
one assessor from the public panel
two assessors from the professional panel (ie medical practitioners)
The Tribunal has the power to
Advise, caution, reprimand
Enter into an undertaking
Suspend the practitioner
Deregister the practitioner
Imposition a fine

The Professional Conduct Review Panel

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The Professional Conduct Review Panel has the power to hear other disciplinary matters (not
those likely to end in suspension or deregulation.
The Panel is constituted by at least 3 and not more than 4 members including
two from professional panel of assessors
one from public panel of assessors
possibly a lay member of the board or another member from either panel
The Panel has the power to
Advise, caution, reprimand
Enter into an undertaking
Impose conditions on the practitioner

Similarities between the School of Medicine & the Medical Board

The School of Medicines 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.
NB Unlike the SOM PPD SA panel the Medical Board and other panels often contain
lay members.
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

55
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.

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14. PROFESSIONAL OBLIGATIONS & RESPONSIBILITIES

Definitions of Medical Ethics and Medical Etiquette
Ethics
1) The principles of right and wrong that are accepted by an individual or a social group
2) A system of principles governing morality and acceptable conduct
ethics refers to a systematic understanding of right behaviour and conduct within
medical practice
the laws of the duties of medical men to the public, to each other, and to themselves in
regard to the exercise of their profession
Etiquette
1) Rules governing socially acceptable behaviour
etiquette denotes the expected style or form of medical practice prescribed by
convention
the unwritten code of honour by which members of a certain profession are prohibited
from doing certain things deemed likely to injure the interests of their brethren, or to
lower the dignity of the profession

Second Opinions
There are many reasons why a doctor may be asked to give a second opinion:
Upon request from a patient who is
o dissatisfied
o mistrustful
o anxious
o unwilling to wait-and-see
o wants more information
Routine referral from a GP to a Specialist/second GP.
A second referral from GP to a different specialist occurs if a GP is
dissatisfied/mistrustful/wants more information.
Request for expert testimony by a Court eg in a case of medical negligence.
Requests can therefore arise from a range of motives, dont automatically be defensive when a
patient requests a second opinion.
Second opinions are economically as well as morally defensible (as opposed to doctor
shopping, which is not)
In comparison a request for immediate referral when the GP is competent to act is often
unreasonable (additional cost, deskilling, lack of 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.

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Referrals from General Practitioners to Specialists

Referral is one way in which primary care practitioners control access to medical care
Factors to be aware of
When a patient requests to be referred to a specialist it important for the GP to use
their knowledge and experience in deciding whether a referral is necessary, and to
reassure the patient if it is not
Referral causes fragmentation of patients care, which can be increased by interspecialist referral must ensure that this is kept to a minimum
Gate-keeping role ensures that only those patients who require a specialist
consultation will receive one
AMA Code of Ethics
Do not refer patients to institutions or services in which you have a financial interest,
unless you make full disclosure of such interest (conflict of interest).
Obtain the opinion of an appropriate colleague acceptable to your patient if diagnosis of
treatment is difficult or obscure, or in response to a reasonable request by your patient
When referring patients, make available to your colleagues all relevant information and
indicate whether or not they are to assume the continuing care of your patient during their
illness.
When an opinion has been requested by a colleague, report in detail your finding and
recommendations to that doctor.
Should a consultation with a consultant or specialist find a condition which requires
referral to a specialist or consultant in another field, the referral should, where possible, be
made following discussion with the patients general practitioner.
GUIDELINES FOR REFERRING PHYSICIANS:
1. Don't delay referral.
Any surgeon I know would rather examine the bellies of five patients who won't need surgery than be summoned after
a viscus has perforated. The cardiologist can treat a simple arrhythmia developing in a post-op patient more easily than
arrhythmia that has evolved to become complicated and hemodynamically unstable.
2. Do appropriate pre-referral work.
Try to obtain the basic information that a specialist will need to efficiently evaluate your patient. This may seem
obvious, but cardiologists here have told me how they've been called to evaluate an irregular heart rate in patients with
no EKG or serum electrolyte documentation in their chart. Conversely, don't try to guess blindly what additional
complex tests the specialist might need beyond the basics. Obtaining a CT scan and MRI of the pelvis when the
specialist needs only an ultrasound examination is not cost-effective medicine. Parenthetically, the radiologist is
frequently left out of the diagnostic selection process. Use these specialists to determine which type of imaging procedure matches your patients' needs.
3. Tell your consultant what you want.
The more vague the referral, the less useful the consultation. Your request to "evaluate and treat" may well return more
or less than was hoped for. To get your money's worth from a consultation, log onto your e-mail or pick up the phone
and use the paging system. Tell your consultant exactly how he or she can help you and your patient, and then
document what you've said in the chart. Always state directly the desired outcome of your referral. For example, if you
want to have a palpable lymph node in your patient's neck biopsied, ask for it clearly and directly rather than recording,
"Please evaluate this patient and opine re: biopsy."
4. Know the consultant roster well.
Who does the best muscle biopsy, including proper alignment of the specimen for processing and fixation? Who best
evaluates and treats back pain? Survey your most knowledgeable colleagues and get the answers you need. Of
course, in an academic health center, access of consultants can be limited by an attending schedule. But be persistent
in supporting your patients' needs. Don't think parochially, and be prepared to jump party lines - e.g., university to
private practice or vice versa.

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Formalities of a Referral Letter
Referral letter should include:
full GP and practice details
complete patient demographic data
patients contact telephone numbers
details of presenting complaint and reason for referral
all relevant clinical information/findings including results of any tests done eg.
examination, pathology tests, x-rays
past medical/social/family history
medications current and past separated
whether an interpreter is required

Scope of the Student / Doctor Relationship

AMA Code of Ethics
Pass on your professional knowledge to colleagues and students
Before embarking on any clinical teaching involving patients, explain the nature of the
teaching methods and obtain the patients consent
Do not allow a refusal to participate in teaching to interfere with the doctor patient
relationship
In any teaching exercise, ensure that your patient is managed according to the best proven
diagnostic and therapeutic methods and that your patients comfort and dignity are
maintained at all times
Do not sexually or emotionally exploit students or colleagues under your supervision

Professional Boundaries & Unprofessional Conduct

Professional Boundaries
Doctors and patients have what is known as a fiduciary relationship. Professional boundaries
set the edge or limit of professional behaviour within this relationship.
They comprise a set of rules (both implicit and explicit) establishing the professional
relationship as separate from other relationships.
They imply the existence of professional distance and respect, and require careful use
of power in the professional relationship.
This is necessary as there is an inherent power differential between the doctor and
patient.
Professional boundaries are necessary to
Maintain therapeutic efficacy.
Prevent harm to patients, particularly to those who may be vulnerable.
Provide space to the therapist.
Treatment must involve the creation of an atmosphere of safety, predictability and
trust for the patient.

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Maintaining a Professional Distance
The responsibility for defining and maintaining boundaries (and the proper personal distance)
falls with the Doctor.
Requires ongoing attention and a need to be vigilant about changes over time.
The therapeutic framework is created by
o An absence of physical contact other than handshake or clinical examination.
o Circumscribed location and length of appointment.
o Maintenance of confidentiality.
o Declining lavish gifts.
o Avoidance of social or financial relationships.
o Ensuring relative asymmetry of self-disclosure.
Professional boundaries do not, however, imply rigidity or remoteness they allow the
demonstration of warmth, empathy and spontaneity within a climate of safety.
The central theme of all treatment relationships is the willingness of the doctor to forego
their own gratification in the interests of assisting the patient.
Violating Professional Boundaries
Professional boundaries can be violated by
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.
Minor violations are also important
Non-sexual violations can still cause harm to the patient.
Attention to minor violations may prevent descent on a slippery slope to sexual violations.

Sexual Relationships b/w Doctor and Patient

Why Sexual Relationships are Inappropriate
Sexual relationships are inappropriate because
There is an inherent power differential in the relationship between a doctor and their
patient which manifestly advantages the doctor. This undermines the patients 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 doctors capacity to make
sound and appropriate clinical judgements for the patient it interferes with the best
provision of care. Thus the physician will find it difficult to perform to their standard of
care and might place their needs over those of their patients (duty of care, beneficence).

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The doctor patient relationship is a fiduciary relationship where the patient pays a fee for
the service of a trusted professional a sexual relationship removes the professional
distance and objectivity between them (counter to principles of justice).

Determining whether a Sexual Relationship is Appropriate

Some general criteria for determining when a relationship between a patient and doctor is
appropriate are as follows:
Treating relationship must have been formally terminated and referral arrangements made.
Treating relationship must not have involved psychotherapy or counselling.
Patient must not have had a history of sexual trauma at the time the relationship started.
Patient cannot suffer from a disorder that impairs judgement or decision-making.
Patient must be at least 18 years of age.
Sexual relationship must not start within one year of termination of relationship (NB this
time frame is not definitive it will depend on the circumstances as a whole).
Social contact should only occur one year after termination of the treating relationship.
If the former patient initiates social contact within one year of termination of treating
relationship, it must not take place in any setting related to the doctors practice of
medicine.
The doctor must refrain from counselling/treating at all times once a sexual relationship
has been initiated (the only exception is for emergencies).

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15. OBLIGATIONS TOWARDS IMPAIRED COLLEAGUES

Common Causes of Impairment
Impairments include
a physical handicap
a physical condition
alcohol or drug dependence it is
a psychiatric condition
a temporary stress reaction
declining competence due to age or illness

Physical disorders that substantially affect capacity to practice include stroke, Parkinsons
disease, Alzheimers disease, and physical injury.
Misuse of drugs or alcohol it is estimated that 7-8% of doctors suffer from significant
alcohol abuse, and possibly 1% suffer from severe narcotic drug abuse, with some
multiple substance abusers.
Psychiatric disorders that substantially affect capacity to practice include depression,
anxiety, panic attacks, bipolar disorder, obsessive-compulsive disorder.
Other problems for Doctors include disillusionment, resentment, social isolation and
uncertainty/insecurity in their work.
Problems that can arise during medical school include high levels of psychological
distress, rites of passage, exposure to the medical culture, personal expectations and
experiences as a student.

Features of a Doctors behaviour include conscientiousness, high expectations,

competitiveness, and guilt & responsibility. Doctors often avoid asking for help because of
the doctors expectation that he should not need help
the belief that he should be able to sort out his own problems
fear of stigmatisation
misinterpreting his symptoms focusing on physical rather than psychological problems

Response to Impairment
Rationale
Medical boards have taken a major role in dealing with physically or mentally impaired
doctors in order to
ensure optimal patient care meet their duty of care
maintain community confidence in the profession, which is compromised by impaired
doctors improperly treating patients
provide a uniform system for dealing with complaints, investigations and disciplinary
proceedings relating to doctors and to manage impaired doctors

62
Until relatively recently, doctors were automatically deregistered if they were found to be
misusing drugs or alcohol. This led to a reluctance to present with drug, alcohol or psychiatric
problems because of shame, embarrassment or fear of deregistration.
Colleagues of impaired doctors are not always willing to provide support, encouragement
and help.
Current Approach
During the 1980s a different attitude to the impaired doctor began to evolve in Australia,
moving away from punitive approaches and professional isolation and towards a framework
of rehabilitation, assistance and professional support.
Medical Boards have now recognised the unique demands of the profession and the way in
which these demands can precipitate impairment, and have therefore moved away from a
framework of punitive action towards a framework of support and assistance.
Various state Medical Boards established special committees for dealing with impaired
doctors, and groups such as Doctors Health Advisory Services (DHAS) were developed.
Australian medical boards now emphasise treatment and rehabilitation where possible.
Rehabilitation results are encouraging, but the profession needs to do more in prevention,
early detection and provision of high speciality treatment and rehabilitation.
Difficult issues still arise in relation to ageing doctors, psychotic doctors lacking in insight
and drug dependency with extreme denial.

Impaired Practitioner Programs

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.
Doctors Health Advisory Services (DHAS)
The 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 a confidential, independent, voluntary and fee free advisory service.
Has a 24/7 On-Call access.
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 counsellors role becomes one of supporter, mentor, or case manager, as is
appropriate.
The Medical Board of QLD has also developed a supervised treatment and rehabilitation
program for impaired doctors. As in other States, they may appoint a committee of assessors
(appropriately medically qualified) to determine a doctors medical fitness to practise
medicine. This will occur if it comes to the notice of the Board that that person may be unfit.

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Ethical Obligations for Doctors

Ethical dilemmas may emerge for the reporting doctor, the treating doctor, and the doctors
health advisory service. Several duties exist under the AMA Code of Ethics:
AMA Code of Ethics
Refrain from making comments which may needlessly damage the reputation of a
colleague or cause a patient anxiety
Report to the appropriate body of peers any unethical or unprofessional conduct by a
colleague
When a patient alleges sexual or other misconduct by another doctor ensure that the
patient is fully informed about the appropriate steps to take to have the complaint
investigated
Accept responsibility for your personal health, both mental and physical, because it affects
your professional conduct and patient care
Reporting doctors dilemmas
Loyalty to friend or employer vs awareness of risk to patients if problem not addressed
The Australian ethic of not dobbing on a mate vs the ethical requirement of upholding
the integrity of the medical profession
Treating doctors dilemmas
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
doctors advice?
Doing nothing respects the ethical requirement for confidentiality but ignores the danger
to others to report breaks confidentiality (and incurs possible legal liability) but protects
unknown patients perceived to be at risk.
Doctors health advisory service dilemmas
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?

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16. DOCTORS & THE PHARMACEUTICAL INDUSTRY

Relationship b/w Doctors & Pharmaceutical Industry
The pharmaceutical industry has made major contributions to patient care, medical research,
and the support of postgraduate and continuing medical education in Australia. Like
physicians, the pharmaceutical industry is engaged in the treatment of disease, and conducts
research directed toward finding improvements in treatment.
It is 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 but is not the consumer of the product.
The physician acts as the agent of the consumer, and this relationship is limited by laws
that govern the prescribing of drugs.
Guidelines for interactions between doctors and this industry have been developed.
Overriding ethical objective:
Any benefit in cash or in kind, any hospitality or subsidy received from a pharmaceutical
company must leave the physicians independence of judgement manifestly unimpaired.

Pharmaceutical Sponsored Travel

The most appropriate way for the industry to provide sponsorship is through independently
organised scientific meetings.
(i) Sponsorships may be offered to individual physicians to travel to a meeting in which they
are already involved as a speaker or chairman. This is acceptable so long as
o The meeting should be reputable (eg a scientific meeting of specialist society)
o The sponsorship arrangement should be made by meeting organisers
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 must be at a reasonable level as judged by the meeting organisers.
(ii) A sponsorship offered to an individual who is already involved as speaker or chairman
independently from the organising committee of the meeting 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.
o Be aware that invitations could arise from the companys belief that the physician
would make a contribution to their benefit (not independent).
o Lack of an independent organising committee calls into question the independence
of the speaker.
o These considerations usually prohibit involvement by the practitioner.

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(iii) It is 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. Group participation does
not absolve individuals from their own ethical responsibilities.
Sponsorship to meetings with a spouse or significant other is so open to abuse that it can
never be justified if the company bears the costs of travel or other expenses for them.

Support for Meetings & Other Educational Activities

Where support of pharmaceutical companies is sought, the college involved should be even
handed and not favour one company over another.
Where the supporting company selects and sponsors the speaker and the meeting:
The supporting company should send out the invite in its own name.
The supporting company should supply the venue for the meeting.
The supporting company should support the speaker and meet other costs.
It 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, but should otherwise have no involvement.
Where the pharmaceutical company offers to provide a speaker for a meeting primarily
organised by the College:
The overriding principle is that any meeting sponsored by the College must have a
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 made clear on all invites and publicity for the meeting.

Gifts & Samples

Gifts to Physicians
Gifts include not only discrete items but also payment for dinners and other expenses.
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 be acceptable.
Non-service oriented items should in general be rejected, including lavish dinners that are
disproportionate to the content of the physicians involvement.
Samples
Provision of samples is rarely an altruistic exercise by the company involved.
Usually a marketing exercise to accustom a doctor to prescribing a certain product or to
establish a cohort of patients on long-term treatment with a particular drug.

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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.

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17. COMMERCIALISATION OF MEDICINE & ADVERTISING

Deregulating the Medical Profession
Benefits of Commercialising Medicine
Deregulation of advertising in the medical profession allows for
Cost efficiencies.
Greater competitiveness and reduction in medical monopolies.
Better information provision for patient decision making.
Advertising reduces medical paternalism.
Protection against unfair trading.
Disadvantages of Commercialising Medicine
Vertically integrated medical services (eg the same company owns GP, radiology,
pathology lab etc) may encourage over-servicing, which strains the health budget.
Risk of dominance of commercial over altruistic values - medical care becomes a product.
Consumer demand (which may be encouraged by commercialisation) encourages overservicing 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
creating a multi-tiered health care system where some can afford optimum health care and
others cant (erodes justice).
Desire for profits reduces expenditure on health incentives to limit investigations and
treatments that may not be very profitable (failure to give best standard of care).
Shift in clinical autonomy doctor making decisions for reasons other than the patients
interests.
There is the suggestion from the ACCC's competition policy arm that certain areas of medical
practice (eg specialties) are operating in monopolistic and uncompetitive ways, against the
interests of health consumers.
The ACCC has a mandate under the Trade Practices Act 1972 (Cth) to open up restricted
areas to more competition.
Such a model arguably fails to take into account many of the special aspects inherent in
health care relationships (ie they are not purely commercial interpersonal and ethical
dimensions must also be considered).

Advertising Rules
When marketing a medical practice it is not necessarily a bad thing to tell people that you are
available for consultation. Not all promotions however are ethically valid.
Summary of Advertising Rules
No false misleading or deceptive advertising.

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No discounts, gifts or inducements eg any promotion which dispenses goods or services

free of charge (with the subtext of some sort of quid pro quo) is ethically dubious
No endorsements or testimonials ethical restraint should also be exercised when
accepting gifts or endorsements from drug companies or other parties interested in
receiving referrals (eg specialists, pathology or radiology services).
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.

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. Are you claiming expertise where
you might not have the appropriate abilities or qualifications?

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18. MEDICAL CERTIFICATES

Requirement of Veracity in the Issuing of Certificates
Medical practitioners play a vital role in the issuing of certificates, and have both a legal
requirement and an ethical obligation to provide accurate medical certification.
Society has licensed medical professionals to issue certificates across a broad area of areas
because of the trust placed in them based on their expertise and professional integrity.
The Medical Board of Queensland has a policy document on medical certification.
Medical practitioners are ethically bound to adhere to these guidelines.
Range of Medical Certification
The range of certificates that doctors can issue is a prime manifestation of the considerable
power that society has invested in them. The range of certificates includes
Sickness certificates
Insurance certification
Registration of births and deaths
Burial and cremation
Transplantation procedures
Post-mortem and anatomical investigations
Requirement of Accuracy
The provision of accurate certificates is important in order to
Control infectious diseases and maintain public health.
Ensure that 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).
Ensure the legitimacy of granting and enforcing insurance policy entitlements.
Enable the accurate registration of births and deaths.
Enable the proper conduct of coronial enquiries, burials, cremations, transplantation
procedures and post-mortem & anatomical investigations.
Allow the proper detention of people under the provisions of Mental Health legislation.

Formalities & Penalties

Guidelines for Sickness Certificates
Certificates must
be legible
be written on the doctors letterhead stationery or an appropriate certificate form bearing
the doctors name and practice address
be addressed to the party for whom the certificate is intended
indicate the date on which the examination took place

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be based on facts known to the medical practitioner

include the degree of incapacitation of the patient
include the date on which the patient is likely able to return to work
must not contain abbreviations or medical jargon

Certificates can never be backdated or post-dated to correspond with an existing or proposed

absence from work.
Patients may request that a doctor withhold certain information regarding the diagnosis.
The right to confidentiality must be respected, however the patient should be advised that
the information on the certificate may not be enough to justify 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 the findings of an 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.
Medical practitioners may be requested to state whether a patient can 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.
Penalties for Issuing False Certificates
Medical practitioners must ensure that any certificate they sign is entirely accurate. When this
cannot be done, the nature of any uncertainty must be expressed in the certificate. If a false
medical certificate is signed, then the medical practitioner may be subject to both legal and
professional redress.
Signing a false certificate may render the practitioner liable to an action in negligence.
If the false certificate was knowingly signed, or the practitioner wilfully closed his eyes
to the truth, then he may be liable for the tort of deceit, and may also have committed a
statutory criminal offence.
Regardless of the legal consequences, disciplinary proceedings for professional
misconduct could also be initiated.

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19. CONCEPTUALISATIONS OF HEALTH AND ILLNESS

Essential and Nominalist Conceptions of Disease
Essentialist view of disease - use of observation and testing of remedies to produce
explanations for malfunction, with increasingly sophisticated causal explanations coming to
constitute disease descriptions which are then thought of as entities independent of their
occurrence in particular patients. This is the dominant model.
The essentialist model tends to legitimise conditions for which a casual relationship has been
determined and demote conditions that are more challenging to solve. Tends also to focus
on a biological approach rather than a biopsychosocial approach.
Nominalist view of disease - names of diseases are only names. The disease is not viewed as
an entity, rather it is a group of common properties shared by individuals with the disease.
This model does not refute casual relationships, nor does it claim that the problems arent real,
but it leaves open possibilities for redescription, reclassification and accommodates
biopsychosocial model. Also allows for the frequent failure of patients to conform to
accepted classifications.

Statistical, Functional and Prognostic Versions of Abnormality

Statistical
Functional
Prognostic

an unusual or statistically abnormal result (eg extra tall)

deviating from some perceived biological function (clinically abnormal, eg
deafness)
indicative of increased risk of morbidity or mortality

What is viewed as abnormal by one person may not necessarily be considered to be abnormal
by another.

Evaluative and Descriptive Models of Disease and Illness

Evaluative model what people experience and negatively evaluate. Subjective.
(eg if you have a condition and are feeling down then I might consider it to be not good =
evaluation of it as a disease)
Problems - does the evaluate model imply that
anything an individual does not value is an illness that the health system is obligated to fix
whatever health care professionals dont value are considered diseases?
the dominant social group or government decides what is deemed a disease?
Descriptive model a description of the dysfunction or abnormality. Objective. Doesnt
matter how you feel about it.
Q: Can you have something if you dont have any symptoms?

72
Q: Can you have different amounts of a disease?
Q: Do people consider they have an illness or abnormality (eg deafness)?
Q: How are the characteristics viewed by the culture? (eg is hyperactivity normal for a young
kid or is it an illness?)
Medicalisation of Disease
Medicalisation is strongly associated with the essentialist view of disease. Our culture has a
desire to explain things in medical scientific terms and to locate problems and diseases within
individuals.
The scientific process is biased in favour of things which can be measured. Measurement is
considered the tool for placing things inside or outside of the normal range. Under the
empirical approach things which are easier to measure are viewed as more objectively real.
Therefore conditions related to these measurements are similarly regarded as more real.
How easily can we measure
- fear?
- serum glucose?
- depression?
- intelligence?
- weight?
- delusions?
- effect of anti-psychotic drugs?
- effect of psychotherapy?
Things that we can measure are viewed as more objective and more definite. They are viewed
as true and will consequently get more support philosophically and financially. This leads to
differences in allocated resources and research.
Scientific and Alternative Explanatory Models
Scientific models are based on providing an account of a process which rules out the nonoccurrence of that process. A scientific explanatory account assumes all the necessary and
sufficient conditions for the occurrence and with those conditions in place, the process must
occur. The framework is causal determinism, upon which we make predictions. If evidence
refutes the prediction, the explanation is questioned.
Psychiatric conditions are not as easily explained in a causal manner. Psychiatric diagnostic
classifications consist of behavioural factors rather than pathophysiological ones, which carry
evaluative (subjective) elements, such as desire, emotion and value pretty difficult to
measure. It is also difficult to distinguish dysfunction that is chosen rather than natural.
The failure to develop objective evidence in the psychiatric field has caused psychoanalysis to
be critiqued as unscientific. The essentialist view would rule psychoanalysis out as a scientific
theory and consequently discount some important psychiatric conditions. The nominalist
view is more sympathetic to alternative methodologies in research and practice especially in
regard to problems of the self, personality and relationships.

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20. CHRONIC ILLNESS & ALTERNATIVE THERAPIES

Use of Alternative Therapies
What are Alternative Therapies
The terms alternative, complementary, non-orthodox and unconventional therapies are
often used interchangeably. Therapies included in this classification include naturopathy,
herbal medicine, homeopathy, reflexology, aromatherapy, acupuncture, traditional Chinese
medicine, hypnosis, faith healing, meditation, Reiki, massage therapy, osteopathy and
chiropractic.
There are many limitations to the effectiveness of orthodox medicine, and many conditions,
especially those that are insoluble or respond poorly to treatment, may be treated by
alternative or complementary methods. Better treated does not necessarily mean cured it
depends on the patients shopping list.
A large study in South Australia showed that 48.5% of respondents used non-physician
prescribed alternative medicine.
Significantly more women than men used these alternatives.
The most common alternative therapy used was chiropractic.
Several other smaller studies have shown rates of use at a similar level.
Rationale for Alternative Therapy Use
The reasons that people use alternative therapies include
Dissatisfaction with conventional medicine
Attraction to the idea of holistic and/or preventative medicine
Treatment of specific health condition that are often chronic, untreatable or unrecognised
by orthodox medicine
Psycho/social/cultural factors (including unconventional personality, ethnicity and
lifestyle preferences)
Users of alternative therapies appear to exercise more control over their health. The holistic
model focuses on prevention and self-care, patient participation in healing, and minimised
risk. Social changes have also seen a cultural shift towards the values that underlie alternative
therapies
Return to nature arising from environmentalist movement and ecological crises
Greater awareness of other cultures and traditional practices
Increased access to information
Commercialisation, which promotes and markets natural medicines in western societies

Complementary Modalities within Allopathic Medical Practice

See http://www.ama.com.au/web.nsf/doc/SHED-5FK4V5/$file/healths_gd_ps_compl%20medicine.doc

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GPs can refer to Aboriginal health workers, audiologists, chiropractors, chiropodists,

dieticians, mental health workers, occupational therapists, osteopaths, physiotherapists,
podiatrists, psychologists and speech pathologists these are considered by Medicare to
be Allied Health.
Research indicates that many GPs in Australia have accepted therapies such as
acupuncture, chiropractic, hypnosis and meditation as potentially beneficial. Over 80% of
the GPs surveyed had referred patients for a complementary therapy at least a few times a
year. At the same time, many GPs express greater confidence when therapies are
practised by those who are also medically trained.
Almost half the GPs surveyed reported an interest in training in areas such as meditation,
hypnosis and acupuncture. Considerable numbers had undertaken training and a smaller
proportion practised these in conjunction with mainstream medicine.
Nearly 20% practised one complementary therapy. Acupuncture appears the most popular,
with at least 15% of Australian GPs practising this treatment. Such consultations do attract
a Medicare rebate.
Eg many family doctors see acupuncture as an effective treatment for chronic pain.
GPs generally underestimate the extent to which their patients access complementary
medicines. Relatively few patients (approximately one third of those who use
complementary medicines) actually inform their medical practitioner of their use.

Medical Specialists and Hospital Departments

There has been a growing interest in complementary medicines and therapies among
medical specialties such as obstetrics & gynaecology and rheumatology.
There has also been an increasing need for hospital departments and pharmacies to
produce policies in response to patients requesting continued access to their
complementary medicines during hospitalisation.

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21. IMPLICATIONS OF AGEING & FATAL ILLNESS

When considering the status of a person with a chronic or terminal illness, both quality of life
and sanctity of life come into play.
Quality of Life
An individuals quality of life is a measure of their physical capabilities and mental wellbeing.
It involves an assessment of several factors, including
their physical state and ability to do physical tasks
their emotional state, self esteem and sense of worth
their ability to fulfil social roles
A persons quality of life refers in large part to their subjective experience of life. For
example, a person who is not fully able may still feel that they are leading a fulfilling and
worthwhile life. They would consider that they have a good quality of life even though they
might have difficulties doing normal tasks like driving and cooking meals.
Issues relating to quality of life can often feed back on each other. A person whose illness
forces them to leave their job could quite easily end up staying at home, which can further
isolate them from their normal social contacts. The psychological impact of these changes
can frequently lead to depression. Any change that affects a persons expectations of leading
a healthy and fully functional life can affect their quality of life. Even knowledge devoid of
immediate physical effects, such as the revelation that someone has the genetic mutation for
Huntingtons Disease, can expose them to stresses that will effect their quality of life.
Because the health sector receives insufficient funds to do everything, it is important that the
health budget is distributed in order to gain the maximum return in terms of health outcomes.
Health economists use cost utility analysis to assist in making decisions about the allocation
of resources. One of their tools is the quality adjusted life year (or qualy).
Sanctity of Life
Sanctity of life is the concept that life is sacred above all else, and should therefore be
cherished, protected and sustained. It is therefore an absolute belief.

Reactions to separation and loss

Grief is the most common reaction to separation or loss, and is an inherently individual
process.
On the 1967 Holmes-Rahe Life Events Rating Scale, the death of a spouse or child was
identified as the single most stressful event known, and further studies showed that
traumatic loss of a spouse or child could result in distress for as many as four to seven
years after the event.
In a Finnish mortality study, deaths related to alcohol, violence, heart disease and
accidents doubled or more among those who had lost a spouse or child in the preceding
five years.
Grief may be about stressors less significant than death, however, and any negative even
or loss can result in negative affect, potentially pathologically so.

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As a medical practitioner, it is important to facilitate the grieving process in order to allow

continued functioning of the individual. Recognise that people grieve in different ways.
Children and men are particularly vulnerable to being left as the forgotten mourners.
Children frequently do not understand death and the reasons for it, and may respond by
being overly conscientious or clingy to avoid the same fate.
Men are faced with a different set of expectations for grief.

Fears of and resistance to displacement

Relocation and institutional placement will always be stressful events.

Awareness of these reactions and a light but honest touch combined with involvement of
family members may assist in relocation.
This is no different to any other potentially unpleasant therapeutic intervention, insofar as
the doctor/patient relationship is the key.

Autonomy, Independence and Substituted Decision Making

Autonomy relates primarily to decision making (eg consenting to treatment) whilst
independence relates to the ability to function without depending on another (eg to do
Activities of Daily Living).
Autonomy = able to make decisions
Independence = able to do day to day tasks
Dementia and other mental illnesses are a special case because they may directly affect
competence. In cases of incompetence, the same structures are in place to provide for consent
as exist for congenital intellectual disabilities (see the chapter on Substitute Decision
Making).
The key differences are that Advance Health Directives can be prepared by the patient and
an attorney can be appointed by the patient (instead of a statutory health attorney usually
a parent or spouse being determined by law).

Provision of institutional care for the elderly

An excellent resource at http://www.ageing.health.gov.au/about/agedaust/agedcare803.pdf
provides a good, comprehensive treatment of this issue (but it is 34 pages long).
People with additional care requirements (particularly the elderly can opt for
Staying at home with formal or informal community based support
Residential aged care low level care (hostels) or high level care (nursing homes)
Services fall into two major categories
Those determined by the ACAT (Aged Care Assessment Team).
127 teams across the country

77
determine eligibility for placements into residential care or for provision of a CAPC
(Community Aged Care Package)
Aged Care Act 1997 governs all aspects or residential care and CACPs outlines
service planning, delivery, payments, responsibilities
HACC (Home And Community Care) programs
set up under the Home And Community Care Act 1985
joint Federal/State funding for ~3500 organisations who deliver services in many areas

User fees: income assessed and capped Accommodation Bonds for hostels or Charges for
nursing homes, plus Daily Living Costs.

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22. DELIVERING BAD NEWS

Essentials

Ensure that you have the correct person and have 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,
or to whom it should be delivered, and the reaction of those who receive it.
Provide accurate information 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 to Take

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 arent 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 will be 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.

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Avoid false reassurance

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23. ETHICS OF SCREENING TESTS

Principles of Screening
Screening is defined as the identification of an unrecognised disease or risk factor. This can be
done by history taking, physical examination, laboratory testing or via a procedure.
Purpose of Screening
Screening tests are not intended to be diagnostic. They are intended to find as many
people as possible who are in a high risk group. This allows more effective targeting of
those who should be subjected to further monitoring or follow up testing.
Public health rationale to reduce morbidity and mortality, and to protect the general
population
Financial rationale reducing the financial burden of disease by early diagnosis and more
favourable prognosis, also impacts on health insurance

Components of an Effective Screening Program

Based on a 1966 World Health Organisation report, Wilson & Junger: Principles and practice
of screening for disease, later expanded by the National Screening Council.
(1) The condition should be an important health problem
Common or moderately common, has a severe health impact, or is expensive to treat
The epidemiology and natural history of the condition should be adequately understood
and there should be a detectable risk factor, disease marker, latent period or early
symptomatic stage
All cost-effective and practical primary prevention interventions should have been
implemented as far as practicable
(2) There should be a simple, safe, precise and validated screening test
The distribution of test values in the target population should be known, and a suitable
cut-off point defined and agreed to
The test should be acceptable to the population privacy and anti-discriminatory practices
should be applied
There should be an agreed policy on the further diagnostic investigation of those
individuals with a positive test result
There should be quality assurance standards for managing the screening program and
appropriate resources allocated to it
(3) There should be an effective treatment or intervention for patients identified
There should be an agreed policy covering which individuals should be offered treatment
and the appropriate treatment to be provided
Clinical management of the condition and patient outcomes should be optimised by all
health care providers prior to participation in a screening progam

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(4) The cost-benefit analysis should be favourable
There should be epidemiological evidence that the screening program is effective in
reducing mortality or morbidity
There should be evidence that the complete screening program is clinically, socially and
ethically acceptable to both health professionals and the public
The benefit from the screening program should outweigh the physical and psychological
harm caused by the test, diagnostic procedures and treatment
The cost of the screening program (including testing, diagnosis and treatment) should be
economically balanced in relation to expenditure on medical care as a whole
(5) Additional Practical Considerations
There should be a plan for managing and monitoring the screening program and an agreed
set of quality assurance standards.
Adequate staffing and facilities for testing, diagnosis, treatment and program management
should be available prior to the commencement of the screening program.
All other options for managing the condition should have been considered.

Successful & Failed Screening Programs

Current Screening Programs
Pap smears
Mammograms
Neonatal screening for phenylketonuria, congenital hypothyroidism, cystic fibrosis etc.
Failed or Inadvisable Screening Programs
Prostate cancer tests are not discriminatory enough, and there is no clear treatment plan
for those who test positive.
Melanoma annual checkups due to the fast growing nature of melanoma, such screening
would raise a false expectation in people that any such cancers will be picked up.
Sickle cell anaemia testing in the African-American population in the 1970s ethically
unacceptable due to discrimination based on the results, and a failure on the part of health
professionals and the public to differentiate between the disease state and carrier status.
Smoking risk factors for pregnant women increased anxiety in the mothers which led to
more smoking and higher risks for the baby.
Factor V Leiden (deep vein thrombosis risk factor) occurs in 3-5% of the population but
absolute risk is still low (cost-benefit analysis is not favourable)
Hypertension in steel workers in Canada hypertensives adopted a sick role 2 fold
increase in absenteeism and decreased satisfaction with work.

Genetic Screening
Currently, most genetic tests are for diseases that are individually rare. Specialist units are
used for assessment, diagnosis and counselling (eg Clinical Genetic Services), and the
laboratory procedures are expensive, time consuming and specialised. Despite these
difficulties, our increasing knowledge of specific genetic changes and the reduction in testing

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costs means that it is now technically feasible to detect those at risk outside the family
context.
As genetic testing technology continues to improve, it will soon become possible to screen
large populations for genetic disorders and mutations.
The systematic application of genetic testing will enable us to identify individuals who are
at sufficient risk of a specific disorder to warrant further investigation or direct preventive
action, especially amongst people who have not sought medical attention on account of
the symptoms of that disorder.
The components of a successful screening program (as outlined above) are also applicable
to genetic screening it should not be carried out for public health reasons unless it is for
an important condition, offers a clear diagnosis and prognosis, and informs choice or
offers opportunities to prevent the problem from arising.
Public acceptance and understanding of genetic screening and its health outcomes is
crucial to the success of such a program.
It is important to put in place guidelines to guard against the misuse of genetic
information.
Abuse of the screening results and discrimination based on them must also be guarded
against.

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24. ETHICS OF IMMUNISATION

Consent & Rights
Analogies with normal consent
Information provision prior to vaccination
Discussion of concerns
Dismissive attitude reduces immunisation
rates

Differences
Parent makes the decision on behalf of their child
Adult's autonomy v child's rights to protection: who
judges?
Risk perception by parents
Compulsory vaccination to prevent harm?

Risk Perception
Risks may seem more real than advantages.
Risks are more visible than the disease when vaccination rates are high.
There is a perceived low risk of illness, even if not immunised (but this is actually
dependant on maintaining herd immunity through high immunisation levels).
Parents are 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 is in essence a type of common good. There is an obligation to contribute
to common good. Failure to immunise can lead to harm to others.
Failure to immunise: best considered a failure to benefit or a direct harm?
As herd immunity fails the benefits of vaccination are once again seen.
Arguments for harm: Protection is seen as a basic right; choosers vs non-responders;
exclusion on medical grounds; exclusion by access/disadvantage.
Paradox: For an individual it is most advantageous if everyone is vaccinated except me.
Doesn't work if everyone acts thus there is a moderate self-interest in vaccinating.
When non-immunised people get sick they are a burden to the community compulsion
should be considered if necessary (eg if immunisation rates fall too low).
Compulsion: In some US states compulsion is practised, but with exemptions for medical,
religious or personal/philosophical reasons.
Compulsory choice is practiced in some Australian states and NZ.
Incentives/coercion: incentives to doctors; linked Commonwealth benefits; ?punitive
economic bias?

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25. TRANSPLANTATION
Tissue Donation by Minors
Whenever medical procedures are discussed in relation to minors, consent will always be an
important issue. This chapter should therefore be read in conjunction with the chapters on
Consent.
The law in Queensland with regard to tissue donation can be found in the Transplantation and
Anatomy Act 1979 (Qld). In this chapter I will only deal with tissue transplantation from
minors.
Regenerative Tissue - Minors
Can only be done for the purpose of transplantation into the body of a parent or sibling (in
WA, Tas, ACT this is extended to include other relatives).
Consent can be given by a parent following medical advice. The procedure must be
understood by both parent and child.
An accompanying certificate must be provided by a medical practitioner. It must restate
terms of consent and include the following statements
that the requisite medical advice was duly furnished
that the consent was given in the practitioners presence
that the parent was of sound mind and gave the consent freely
that the child understood the nature and effect of tissue removal and transplantation
that the child was in agreement with the proposed procedure
A cooling off period of 24 hrs is required
Victoria and Queensland both have provisions allowing the removal of regenerative tissue
from a child who does not understand what is going on due to his or her age
the medical practitioner must additionally certify that they are of the opinion that the
proposed recipient family member is in danger of dying without the transplant, and
that the risk to the donor child is minimal
In SA, tissue removal must be approved by ministerial committee.
Non-Regenerative Tissue - Minors
The ACT is the only jurisdiction which allows for removal of non-regenerative tissue from
a child
Transplantation can only be performed when a family member is in danger of dying
Both parents must consent, and this must be certified by a medical practitioner
The matter is then referred to a ministerial committee for the final decision
NH&MRC Guidelines
The National Health and Medical Research Council has produced the following guidelines for
tissue donation by a minor:
Permitting a child to be a living donor will only be ethically sound if
the risks to the child are minimal

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the donation is to a person such as a sibling with whom the child has an intimate
relationship (the child donor may then benefit indirectly from the benefits to the
recipient, for example, in having a brother or sister survive)
the donation is a last resort in treatment for the recipient
the proposed transplant is of proven efficacy and expected benefit, and there is a good
chance that the risks and discomforts involved for the donor child will be outweighed
by the benefits of transplantation
the parents both consent and the child (if he or she is able to do so) agrees or assents
the childs understanding of the donation and transplantation may be incomplete, but
efforts must be made to ensure that his or her understanding is as thorough as possible,
consistent with his or her age
to the best of the parents judgment, all the reasonably expected benefits clearly
outweigh all the reasonably expected risks and discomforts

Donation to Siblings The Parental Role

Depending on the age of the child, it is likely that the parents may be required to make a
decision on behalf of the donating child. If the recipient of the tissue donation is another of
their children, however, it can be very difficult for the parents to remain objective. They may
place the interests of the family as a whole ahead of the child donors best interests as an
individual. Caution must therefore be taken against children being unduly influenced by
parents, who must balance the best interests of the child donor with those of the related
recipient.
The decision is highly emotionally charged, making it difficult to balance the interests of each
child. There is however something to be said for considering the interests of the family unit as
a whole. The benefit to the family will benefit both children, and may therefore outweigh
some of the risks.
Some important considerations:
Most medical decision-making for minors is based on the therapeutic value of the
procedure in question. In the case of live organ transplantation, the minor donor does not
receive any physical benefit from the surgery.
The legal category of "minor" encompasses a wide age range and varying levels of
maturity. Thus a 7-year-old potential donor should not be treated in the same way as a 17year-old potential donor.
In cases where the donor and recipient are siblings, the conventional models of medical
decision-making become more complicated. It must be recognized that the best interests
of family members are not independent and self-interested but rather strongly intertwined.

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26. ABORTION
What Kind of Question is the Abortion Question?
Abortion is a health issue, a moral issue, an economic issue, a political issue, a personal issue,
a criminal issue and a womens rights issue. What issue most determines the rights and
wrongs of abortion the rights of the woman or of the foetus?
A woman has a right to control her own body. If, however, abortion is equivalent to killing
a human being, then you need to show that the foetus does not have a right to life. If the
foetus does have a strong right to life, then it would trump the womans right to bodily
control. There is no simple answer to this moral dichotomy.
Most people would consider that neither the woman or the foetus has a superior moral
claim over the other it is dependant on the circumstances.
Case study before 1997 in South Africa there were 50,000 abortions per year and 450
women died annually from complications. After 1997 abortion on demand was introduced
(State funded abortion in first trimester, and widely available between 12-20 weeks). Since
then deaths from complications have dropped markedly.

Perspectives on the morality of abortion

The Conservative Position
The foetus is a human being and thus possesses the same rights as any
other person, including a right to life (less support now for an absolute right Bland)
Abortion is murder
Extreme conservatives believe in ensoulment (less support now) once the foetus
is conceived it has a soul and therefore an inviolate right to life.
Moderate conservatives believe the foetus is a potential person and has basic
human rights
Either the foetus has same rights as persons or abortion infringes the right to life of the
person whom the foetus will become.
There are some instances where abortion may be morally justified
including where the mother was raped or the foetus is a risk to the
mothers life.
These exceptions suggest that the life of the foetus is seen as slightly
different to that of other humans, but 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 of what someone else did or what might happen to someone else?
The Liberal Position
Liberals accept abortion but advocate methods based on least harm to the foetus.
The extreme liberal position is that a woman should have the right to
abortion at any stage of pregnancy regardless of any consideration of
the moral status of the foetus.
The rationale is that to have a right requires an interest, and an interest

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requires the relevant conceptualisation. In this case a right to life

requires a concept of continuing life. Since foetuses do not have a concept
of continuing life (which requires rationality & social interaction) they do not have
an interest in or a right to life.
It is not possible to infringe the right to life of the person the foetus will become,
because there is no particular identifiable person whom it will become. To have a right
to life requires a particular person to hold that right.
A more common position insists that abortion is always a grave moral
decision
Many who hold liberal views believe that abortion may be morally
permissible in serious situations such as rape, incest or severe congenital
disease/genetic abnormality. Many also consider the harms which may
accrue to the actual person the foetus will become if born.
Many consider that a womans consideration for her own interests or
the interests of her family would justify abortion if the consequences of
child birth are sufficiently grave.
Many liberals would hold that the State has no right to interfere even
with morally impermissible actions, because the question of whether an
abortion is morally justifiable is ultimately up to the woman.

Intermediate/Moderate Views
Based on common intuitions - abortion is morally serious but not always wrong.
The foetus may not have a strong right to life, but its life has a significant value
the value is of the foetus is proportional to its developmental stage - possible criteria:
birth, viability, sentience based on CNS development
the value is based on a potential for personhood
a full right to life is a conservative position
a serious & increasing, but not absolute, right to life is a more moderate position
The concept of harm
Many liberals accept there is no right to life, but may distinguish on the basis of possible
harms to a sentient being, or harm which might affect the actual person the foetus may
become if born.
For liberals, the foetus has right not to be harmed, but not the right to life. Harm must
therefore be carefully defined.
Christian Views
In Western societies the greatest opposition to abortion comes from the
Christian Church, in particular the Roman Catholic traditions.
Today the position of the Roman Catholic Church is that human life
begins at the time of conception - "abortion is murder"
Abortion is also opposed on the basis that interference with the process
of reproduction is interfering with Gods procreative function, as with
masturbation and contraception.
Exceptions include where the death of the foetus is an inevitable
consequence of therapy
Eg ectopic pregnancy, carcinoma of the uterus

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Non-Christian Religious Views
Four main Muslim schools of law Hanafite, Hanbalite, Malikite and
Shafiite
All agree that abortion should not be performed after the fourth month,
when the soul is believed to enter the body, unless there is danger to
the mothers life, but there is no consensus about abortion before that
time.
In Jewish traditions abortion is considered morally wrong abortion is
objectionable for any reason except to protect the mothers life, sanity
or personal well being.
In some situations, such as when the mothers life is in danger, abortion
may be considered mandatory.

Moral Status of the Foetus

Personhood and the Continuum of Moral Development
The idea that moral rights vary with development is common in nonreligious arguments about abortion
The attainment of mental characteristics such as rationality, sentience,
self-awareness, social interaction and the capacity to communicate
attach a moral significance to a person
These characteristics are used to define personhood
The argument follows that since only persons have a right to life, and
fetuses are not persons, it then follows that they do not necessarily
have a right to life
The problem then arises that, with the progressive accumulation of
moral value by the foetus, it is difficult to ascertain when the cut-off
point for abortion should be applied
Some have suggested viability as the cut-off, however viability is often
determined by the technology available at that time and place, and so
is somewhat arbitrary

The Law on Abortion

Abortion has traditionally been governed by the criminal law, but the law is now in transition.
Criminal law actions are prosecuted by the State and the standard of proof is beyond
reasonable doubt, cf a civil law action where compensation is being sought.
The most recent judicial statements have been made in civil actions for wrongful birth,
where it is argued that abortions would have occurred but for negligence in failing to
diagnose pregnancy or to mention the possibility of abortion.
There is a lack of uniformity across jurisdictions.
Given the difficult and divisive moral issues surrounding abortion,
political parties in Australia have frequently tried to steer clear of it.
The law about abortion is therefore slow to change, and in some states
is lacking in clarity. It is the health profession in each State that usually

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sets the guidelines for when abortions may be done.
Abortion Law in Queensland
In Queensland it is illegal to attempt to procure an unlawful abortion or kill
an unborn child.
Criminal Code 1899 (Qld)
s224 Attempts to procure abortion
Any person who, with intent to procure the miscarriage of a woman, whether she is or is not
with child, unlawfully 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 for 14 years.
s225 The like by women with child
Any woman who, with intent to procure her own miscarriage, whether she is or is not with
child, unlawfully administers to herself any poison or other noxious thing, or uses any force
of any kind, or uses any other means whatever, or permits any such thing or means to be
administered or used to her, is guilty of a crime, and is liable to imprisonment for 7 years.

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s226 Supplying drugs or instruments to procure abortion
Any person who unlawfully supplies to or procures for any person anything whatever,
knowing that it is intended to be unlawfully used to procure the miscarriage of a woman,
whether she is or is not with child, is guilty of a misdemeanour, and is liable to imprisonment
for 3 years.
Criminal Code 1899 (Qld)
s313 Killing unborn child
(1) Any person who, when a female is about to be delivered of a child, prevents the child
from being born alive by any act or omission of such a nature that, if the child had been
born alive and had then died, the person would be deemed to have unlawfully killed the
child, is guilty of a crime, and is liable to imprisonment for life.
(2) Any person who unlawfully assaults a female pregnant with a child and destroys the life
of, or does grievous bodily harm to, or transmits a serious disease to, the child before its
birth, commits a crime.
Maximum penaltyimprisonment for life.
* The criminal definition of assault is very broad and includes the merest touch.
The term unlawfully implies the possibility of lawful abortions
The original purpose of outlawing abortion was to protect the mothers health from
induced abortions. The circumstances in which abortion may be lawfully performed have
been a more recent judicial development.
A possible statutory exception allowing lawful abortion may be offered by s282,
however this has yet to be used in Court as a defence in an abortion case.
Criminal Code 1899 (Qld)
s282 Surgical operations
A person is not criminally responsible for performing in good faith and with reasonable care
and skill a surgical operation upon any person for the patients benefit, or upon an unborn
child for the preservation of the mothers life, if the performance of the operation is
reasonable, having regard to the patients state at the time and to all circumstances of the case
The Menhennit Rules for Lawful Abortion
At common law the legality of an abortion is determined by the principles of necessity &
proportion. The accused must honestly believe on reasonable grounds that the abortion is
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); and
In the circumstances not out of proportion to the danger to be averted
It is difficult for Crown to establish that the doctor did not honestly believe this.
What is meant by preservation of the mothers life
conservative interpretation - would outlaw most abortions
more liberal interpretation - in terms of perceived necessities of situation
necessity as a legal principle excuses an otherwise criminal act, on the ground that it
avoids an inevitable & irreparable evil

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Development of Case Law
1. R v Bourne [1939] (UK)
if the probable consequence of continuing the pregnancy is to make the woman a physical
or mental wreck, then a doctor may operate to preserve the life of the mother
2. R v Davidson [1969] (Vic)
The accused must have honestly believed on reasonable grounds that the act done by him
was both
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
in the circumstances not out of proportion to the danger to be averted
3. R v Wald [1971] (NSW)
extension to any economic, social or medical grounds which would cause a serious danger
to physical or mental health
serious danger could be expected to apply at any time during pregnancy, not just when the
woman is seen by doctor
4. R v Bayliss & Cullen [1986] (Qld)
approved the Menhennit rules for interpreting unlawful, particularly the importance of
necessity
ruled out abortion on demand
linked s282 with idea of viable child the position between abortion & murder
by this argument s282 would not provide a defence to abortion
but the court also admitted that the scope of s282 is difficult to define
5. Veivers v Connolly [1994] (Qld)
This was a civil action about a negligent failure to detect rubella in a pregnant woman.
She was not advised of the possibility of termination, and the child was born with severe
impairments.
It was argued that termination would have been legal through s282 based on the danger to
mothers mental health. This danger was likely to crystallise after the birth of a seriously
affected baby, but it is still a consequence of pregnancy (no need for current evidence of
danger see R v Wald).
Liberalisation of the 1986 Qld position
6. CES v Superclinics [1995] (NSW)
A wrongful birth case - another civil action about a failure to diagnose pregnancy and
denial of the opportunity to abort. Sought to recover damages for pain & suffering,
depression, and economic loss.
Rejected by the trial judge, who determined that abortion would have been unlawful.
On appeal allowed the circumstances after birth of the child, including economic &
social circumstances affecting mental health to count towards whether an abortion would
have been lawful (another extension of test of unlawfulness)

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Summary of the Current Qld Position
The law protects foetal life, but doesnt attribute a full right to life
Unlawful abortion is an indictable offence
A child is not a legal person capable of being killed until born (but s313 extends this)
s282 might provide a defence for abortion
The Menhennit Rules are accepted by the common law as the principles guiding lawful
abortion. Requires a subjective assessment of necessity and proportionality:
An honest belief on reasonable grounds that abortion was necessary to prevent harm
to womans physical or mental health, according to the definitions provided for by law
serious danger to (mental) health, which now extends beyond birth (but possibly
only in cases where there is a seriously affected foetus)
no direct application of other conditions (such as social or economic factors) either
during or beyond pregnancy to justifying abortion, but some doubt remains
An honest belief that termination is not out of proportion to danger to be averted
Increased emphasis on informed consent WA, ACT, Tas Acts; Rogers v Whitaker
No legal right to abortion on demand, except in WA and (almost) Tas
No direct ground for abortion due to foetal abnormality except in SA, NT
Elsewhere, danger to mental health (from abnormality) is required
Other States With Abortion Legislation
SA & NT
Abortion is lawful in certain defined circumstances
performed in hospital
2 doctors confirm that there is a greater risk to the life of the mother, or greater risk to
her physical or mental health, than if pregnancy terminated
if the child would be seriously physically or mentally handicapped or has a serious
hereditary disorder
WA
Acts Amendment (Abortion) Act 1998 (WA) removed abortion offences from the WA
Criminal Code
New provisions in the Health Act 1911 (WA) requires that:
the woman has provided informed consent; or
the woman will suffer serious danger to her physical or mental health; or
the woman will suffer serious personal, social or family consequences without an
abortion
Informed consent
full disclosure of the risks & benefits associated with abortion (eg grief, depression)
by a doctor other than the one performing the abortion
opportunity of referral for counselling
informed that adequate counselling is available (including after abortion or delivery)
Abortion after 20 weeks
2 doctors consider woman or child has a severe medical condition warranting abortion
doctors are not obliged to refer or perform abortions
Unlawful abortion is punished by a fine of $50,000

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ACT
Health Regulation (Maternal Health Information) Act 1998 (ACT)
Doesnt decriminalise abortion, but does add informed consent requirements
Controversy over pamphlets / foetal graphics / adoption / family planning agencies
Criticism: state interference with the Doctor/Patient relationship
Tasmania
Criminal Code Act 1924 (Tas), s134(1), (2) it is a crime for a women or others to
unlawfully seek to procure an abortion
Criminal Code Amendment Act 2001 (Tas)
In response to claim that all abortions in Tasmania were unlawful the following
amendments were made
s164 a person is not guilty of a crime in relation to the termination of a pregnancy if it
is legally justified
2 doctors must certify that continuation of pregnancy would involve a greater risk of
injury to physical or mental health of the woman than if pregnancy terminated (risk:
anything doctors consider relevant)
woman must have given informed consent unless impracticable to do so
Informed consent
Doctor must counsel regarding the risks of termination of pregnancy & of continuing
Doctor refers patient to counselling regarding other matters related to termination or
continuance of pregnancy

Professional Obligations Concerning Provision of Abortion

AMA code of ethics 2004 (3d) - recognises the right of a doctor to refuse
to carry out services which you consider to be professionally unethical,
against your moral convictions, imposed on you for either
administrative reasons or for financial gain, or which you consider are
not in the best interests of the patient.
Legislation (in WA, Tas, ACT, SA, NT) - there is no legal obligation to
perform, assist, advise, or refer - this is known as a conscience clause
However, when a patient requests an abortion, healthcare workers have
an obligation to assist her to understand the nature and consequences
of her decision, and any other options she may have, as fully as
possible
Some health practitioners have such a strong conscientious objection to
abortion that they will not even refer a patient to another practitioner,
but this denies the patient any degree of autonomy in their decisions.
Healthcare professionals should consider whether their right to
conscientiously object also denies the rights of their patients,
particularly where a patient have little choice about which practitioner
they visit (eg a sole practitioner in a rural or remote area)

Difficulty in Prosecuting Doctors

It is extremely difficult to prosecute doctors performing abortions since it is
necessary to prove beyond reasonable doubt

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That the doctor did not have an honest belief on reasonable grounds
that abortion was necessary to prevent harm to the mother - this is a
subjective assessment.
That the doctor did not have an honest belief that the termination was
not out of proportion to the risk/danger being averted.

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27. DISCRIMINATION
Principles of Anti-Discrimination
The Anti-Discrimination Act 1991 (Qld) is intended to promote equality of opportunity for
everyone by protecting them from unfair discrimination in certain areas of activity including
work, education and accommodation.
A person will contravene the Act if they are involved in unlawful discrimination or
objectionable conduct. Section 7 of the Act prohibits discrimination on the basis of certain
attributes including gender, marital status, pregnancy, age, race, impairment, and religion.

impairment is defined by s4 of the Act to include

the total or partial loss of the persons bodily functions, including loss of a body part
malformation or disfigurement of a part of the body
a condition or malfunction resulting in learning difficulties
a condition, illness or disease that impairs mental function
the presence in the body of organisms capable of causing illness or disease

Direct discrimination on the basis of an attribute occurs if a person treats a person with an
attribute less favourably than they would treat others in similar circumstances. It is not
necessary that the person who discriminates considers that the treatment is less favourable.
Their motive for discriminating is likewise irrelevant.
Eg Mr Landlord refuses to rent a flat to Mr Tenant because
Mr Tenant has HIV and Mr Landlord doesnt like HIV positive people
Mr Tenants friend has HIV and Mr Landlord doesnt like HIV positive people
Mr Landlord believes that HIV positive people are unreliable tenants
In each case, Mr Landlord discriminates against Mr Tenant, whether or not his belief
about the impairment, or the characteristics of people with that impairment, is correct.
Accommodation
Under s82 a person must not discriminate against another person
(a)
by failing to accept an application for accommodation
(b)
by failing to renew or extend the supply of accommodation
(c)
in the way in which an application is processed
(d)
in the terms on which accommodation is offered, renewed or extended

accommodation includes a house, flat, hotel or motel, boarding house or hostel, caravan
or caravan site, mobile home or mobile home site, and camping sites.

An impaired person is allowed to make reasonable alterations to the accommodation at

their own expense, provided that they also undertake to restore the accommodation to its
original condition when they leave.

Exceptions
General exception a person will not be engaging in unlawful discrimination if they are
doing an act that is reasonably necessary to protect public health s107.

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It is lawful for a person to discriminate in deciding who is to reside in their private home
(the residents must be family members plus no more than 3 others) s87.
A person may discriminate on the basis of impairment if the impaired person would
require special services or facilities and it would impose unjustifiable hardship on the
person to supply those facilities s92.

Anti-Discrimination Act 1991 (Qld)

PART 2 PROHIBITED GROUNDS OF DISCRIMINATION

Discrimination on the basis of certain attributes prohibited
7.(1) The Act prohibits discrimination on the basis of the following attributes
(a)
sex;
(b)
marital status;
(c)
pregnancy;
(d)
parental status;
(e)
breastfeeding;
(f)
age;
(g)
race;
(h)
impairment;
(i)
religion;
(j)
political belief or activity;
(k)
trade union activity;
(l)
lawful sexual activity;
(m) association with, or relation to, a person identified on the basis of any of the
above attributes.

PART 3 PROHIBITED TYPES OF DISCRIMINATION

Meaning of direct discrimination
10.(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes
to treat, a person with an attribute less favourably than another person without the attribute is
or would be treated in circumstances that are the same or not materially different.
(2) It is not necessary that the person who discriminates considers the treatment is less
favourable.
(3) The persons motive for discriminating is irrelevant.

PART 4 AREAS OF ACTIVITY IN WHICH DISCRIMINATION IS

PROHIBITED
PART 5 GENERAL EXEMPTIONS FOR DISCRIMINATION
Public health
107. A person may do an act that is reasonably necessary to protect public health.

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28. WORKCOVER
A good starting point for information on workers compensation in Queensland is the
Department of Industrial Relations website - http://www.dir.qld.gov.au/

What is a Workers Compensation Scheme?

Workers compensation schemes are intended to ensure that employers have insurance cover
against claims for damages made by employees who are injured in the course of their
employment.
Statutory schemes for workers compensation are different for each State.
The statutory scheme in Queensland is subject to frequent amendments. The current
scheme is set out in the Workers Compensation and Rehabilitation Act 2003 (Qld)
NB. Workers Compensation is NOT the same thing as Workplace Health and Safety (OH&S)

Purpose of Queenslands Workers Compensation Scheme

Workers Compensation and Rehabilitation Act 2003 (Qld)
s5 Workers compensation scheme
(1) This Act establishes a workers compensation scheme for Queensland

(a) providing benefits for workers who sustain injury in their

employment, for dependants if a workers injury results in the
workers death, for persons other than workers, and for other
benefits; and
(b)encouraging improved health and safety performance by employers.
(2) The main provisions of the scheme provide the following for injuries
sustained by workers in their employment
(a) compensation;
(b)regulation of access to damages;
(c) employers liability for compensation;
(d)employers obligation to be covered against liability for
compensation and damages either under a WorkCover insurance
policy or under a licence as a self-insurer;
(e) management of compensation claims by insurers;
(f) injury management, emphasising rehabilitation of workers
particularly for return to work;
(g)procedures for assessment of injuries by appropriately qualified
persons or by independent medical assessment tribunals;
(h)rights of review of, and appeal against, decisions made under this
Act.
(3) There is some scope for the application of the Act to injuries sustained
by persons other than workers, for example under arrangements s6, s7 for

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specified benefits for specified persons or treatment of specified persons
in some respects as workers.
(4) It is intended that the scheme should
a) maintain a balance between
i) providing fair and appropriate benefits for injured workers or
dependants and persons other than workers; and
ii) ensuring reasonable premium levels for employers; and
b) ensure that injured workers or dependants are treated fairly by
insurers; and
c) provide for the protection of employers interests in relation to
claims for damages for workers injuries; and
d) provide for employers and injured workers to participate in effective
return to work programs; and
e) provide for flexible insurance arrangements suited to the particular
needs of industry.
(5) Because it is in the States interests that industry remain locally, nationally and
internationally competitive, it is intended that compulsory insurance against injury in
employment should not impose too heavy a burden on employers and the community.

Who Manages Workers Compensation?

The Workers Compensation scheme in Queensland is administered by three main parties

Department of Industrial Relations - develops and implements the Governments

legislative agenda for workers compensation. Main roles are to develop policy responses
to emerging issues and to administer the occupational health and safety performance
requirements for self-insurers. http://www.dir.qld.gov.au/
Worker's Compensation Regulatory Authority of Queensland (Q-COMP) provides
regulatory services to ensure that all insurers in the area deliver their services fairly and in
accordance with the Workers Compensation legislation. Main roles are to monitor
compliance of insurers with workers compensation provisions, license and audit selfinsurers, oversee administration of medical assessment tribunals and accredit workplace
rehabilitation activities. http://www.qcomp.com.au/
Insurers provide workers compensation benefits and services for workers injured in the
course of their employment. WorkCover Queensland is the main insurer in Queensland,
but employers can also act as self-insurers.

The Role of WorkCover Queensland

WorkCover Queensland has been around in one form or another since 1916. It was
reestablished in its current form (as a statutory authority owned by the Queensland
Government but operating as a commercial not-for-profit enterprise) in 1997.
A WorkCover policy indemnifies employers for liabilities arising out of both statutory
compensation claims and common law damages claims by a worker for work-related
injuries.
WorkCover administers insurance policies for over 133,000 employers and has so far
helped over 72,000 workers with work-related injuries and financial compensation.
It also provides workplace personal injury insurance (for those who are not employees
under the Act) and household workers insurance.

99

WorkCover
has
an
informative,
http://www.workcover.qld.gov.au/

easy-to-use

website

at

NB. Although WorkCover is the predominant insurer in Queensland, employers can also selfinsure (subject to regulatory oversight by Q-Comp).

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The Scope of Workers Compensation

Benefits under the workers compensation scheme will be forthcoming to workers who
suffer a work-related injury or illness.
Who is a worker?
s11 Workers Comp Act defines a worker as an individual who works under a contract of
service. A lot more detail is provided in Schedule 2 of the Act. In summary, it includes
any person who works for another person under a contract unless the person performing
the work is (i) paid to achieve a specified result or outcome, (ii) has to supply their own
tools of trade, and (iii) would be liable for the cost of rectifying any defect in the work
performed themselves. Note however that there is a lot of legal fine print.
The Act expressly excludes certain people from being workers, including directors of
corporations, trustees, partners of a partnership, professional sportsmen... (Schedule 2,
Part 2 of the Workers Comp Act)
Definition of Injury or Illness
s32 Workers Comp Act defines injury as personal injury arising in the course of
employment, if the employment was a significant contributing factor. It includes
contracting a disease, aggravation of pre-existing injuries, diseases, or medical conditions,
loss of hearing, and death (in which case the family of the deceased worker receives the
compensation).
It does not include psychiatric or psychological disorders arising out of reasonable
management actions (eg demoting, disciplining or firing the employee).
When is an Injury work-related?
ss34, 35 Workers Comp Act extend the scope of work-related injuries to include injuries
occurring
at or away from their place of employment while engaged in an activity for or in
connection with the employers trade or business
while the worker is temporarily absent from the place of employment during an
ordinary recess if the injury causing event is not due to the worker voluntarily
subjecting themself to an abnormal risk of injury. In this case the employment need
not be a significant contributing factor to the injury.
on a journey between the workers home and place of employment
an injury on a journey will not be in the course of employment if the worker in control of
the vehicle contravenes the Transport Operations (Road Use Management) Act s79 or
Criminal Code s328A (Dangerous operation of a vehicle), or unnecessarily delays or
deviates from their journey, etc
What benefits do injured workers receive?
Income replacement
Hospital, medical and rehabilitation costs
Lump sum compensation et al
For all the details see Chapter 3 of the Workers Comp Act.

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The Claims Process (Lodging a Claim with WorkCover Queensland)

You are injured at work and tell your employer or supervisor.

You should see a doctor immediately and get a Workers' Compensation Medical Certificate.

You now need to complete the Application for Compensation and lodge it directly with WorkCover or
through your employer. The sooner we get your, and your employer's details about the injury, the
sooner your application can be assessed and if needed, start any rehabilitation you need to help you
get back to work.

We receive your application form. If you are claiming for time off work, please also complete and send
a Tax File Number Declaration. Don't forget to include your Workers' Compensation Medical
Certificate.

We assess your claim. Most claims are decided within 2 weeks, however, some complex medical
claims can take much longer.

A decision is made about your claim. We will notify you in writing what the decision is.

Your claim is accepted.

Your claim is not accepted.

Your compensation benefits will now begin. You

can receive your benefits by fortnightly cheque
or by electronic funds transfer into your bank
account. If your injury is complex one, requiring
rehabilitation, a WorkCover Queensland case
manager will contact you. They will work with
you, your employer, treating doctor and
rehabilitation provider to develop a plan so that
you can recover and get back to work.

You have two choices here. You can accept

WorkCover Queensland's reasons for not
accepting your claim OR you can appeal the
decision. You will need to complete an
Application for Review form and send it back
to Q-COMP. Their Review Unit will then
review the decision made by WorkCover
Queensland.

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The Role of Doctors

Hospitalisation
WorkCover's approval is required for hospitalisation if an injured worker is going to be an
in-patient at a private hospital or a private ward of a public hospital. Without approval
WorkCover might not pay for the treatment or surgery (ie you must recover your fees
from the patient).
Approval is not needed if the person attends a public hospital as a public patient.
Rehabilitiation
The Workers Comp Act places a great emphasis on rehabilitation of injured workers.
It is the role of the treating doctor to determine what rehabilitation needs a patient has as a
result of their injury. It is important that from the very first time they see the patient they
explain what is needed to restore function and facilitate the patients return to work.
Depending on a person's injury, rehabilitation can include services such as physiotherapy,
psychology counselling, training or a suitable duties program.
Assessment of Injuries
Before WorkCover can consider offering a lump sum payment in compensation, a doctor
needs to assess the degree of permanent impairment an injured worker has suffered. A
percentage for work-related impairment for the injury is then calculated.
The degree of permanent impairment is assessed only if the injury is stable and stationary,
using the American Medical Association's Guides to the evaluation of permanent
impairment. The disability is expressed as a percentage.
For work-related impairment of less than 20% the worker must choose either to accept a
statutory lump sum compensation payment OR to claim common law damages. For
impairment greater than 20%, a common law claim can be sought concurrently with
accepting a lump sum payment. (% disability for a given injury is set by law)
Medical Certificates
A medical certificate is a legal document used to assess liability for an insurance claim. It
has four copies: the pink and yellow copies go to the worker (the pink one goes with their
claim form), the blue one goes to the person's employer and the white copy is kept by the
doctor.
A provisional diagnosis is acceptable on initial certification, but a definitive diagnosis is
needed as soon as possible to ensure claims are appropriately managed.
The certificate should
identify the exact location of the injury (e.g. L4-5 disc prolapse), the nature of the
condition (e.g. 'aggravation of lumbar disc degeneration' rather than 'low back pain')
how the injury happened (e.g. 'fall from 3m platform' or 'heavy awkward lift').
Medical Reports
WorkCover sometimes requests a medical report to help manage claims that are more
serious or long term.

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The report should establish (i) the exact nature of the condition, (ii) the relationship of the
condition to the reported cause of injury, (iii) best treatment and progress, (iv) anticipated
length of claim and incapacity for work, and (v) whether rehabilitation is appropriate

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29. REHABILITATION & ALLIED HEALTH

Role of Allied Health Professionals

Allied health professionals (AHPs) include pharmacists, physiotherapists, speech

pathologists, dieticians, radiographers, podiatrists, and several other professions. They can
cover many of the needs of the patient, including assessment of functional capacity and
rehabilitation.
AHPs supplement and support the role of doctors the ultimate medical responsibility
lies with doctors, and doctors control State recognition of AHPs

Rehabilitation
The aim of the team approach to rehabilitation is for patients to achieve the highest level
of independence after an injury or illness.
Early rehabilitation is necessary to prevent secondary disability (eg muscle atrophy,
dislocations, pressure sores).
Using approaches from a variety of disciplines ensures that all aspects of the patients
lifestyle and well-being are addressed, increasing their chances for maximal recovery.
Speech Therapist
Goal is to establish the most effective form of communication.
May include exercises, adjustment in the way the patient speaks, use of speech devices.
Occupational Therapist
Use occupational activities with specific goals, assist people of all ages to prevent,
lessen or overcome physical, psychological or developmental disabilities by
consulting with treatment teams to develop individualised treatment programs
selecting and teaching activities based on the needs and capabilities of each patient
evaluating each patients progress, attitude and behaviour
designing special equipment to aid patients with disabilities
teaching patients how to adjust to home, work, and social environments
testing and evaluating the patients physical and mental abilities
Physiotherapists
Help restore function, improve mobility, relieve pain, and prevent or limit permanent
physical disabilities of patients suffering from injuries or disease
The core skills used by physiotherapists include:
manual therapy
therapeutic exercise and the application of electro-physical modalities
an appreciation of the psychological, cultural and social factors which influence their
clients
Physical therapists
examine the patients medical histories, then test and measure their strength, range of
motion, balance and coordination, posture, muscle performance, respiration, and
motor function

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determine the patients ability to be independent and reintegrate into the community
or workplace after injury or illness
develop treatment plans describing the treatment strategy, its purpose and the
anticipated outcome

Osteopaths
Osteopathy aims to promote healthy functioning in a person by correcting mechanical
imbalances within and between the structures of the body (muscles, bones, ligaments,
organs, and fascia).
Mechanical imbalances in the body are corrected by restoring, maintaining and improving
the harmonious working of the nervous and musculoskeletal systems.
Osteopaths use their hands to identify abnormalities within human structure and function.
Facilitate the body's ability to heal itself through a variety of stretching, mobilizing and
manipulative techniques.
With added exercises and health advice, osteopaths help to reduce symptoms and improve
health and quality of life.

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30. HUMAN RESEARCH ETHICS COMMITTEES

Obligations of HRECs
Human Research Ethics Committees have two primary obligations
1. 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 principles 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 secondary obligation of HRECs is to facilitate research that is or will be of benefit to the
researchers community or to humankind.
How HRECs Discharge Their Responsibilities
HRECs
1. Consider ethical implications of research proposals and determine whether they are
acceptable on ethical grounds.
2. Monitor 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 NH&MRC ACEH
(Australian Health Ethics Committee), providing them with details/records as requested.

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LIST OF LEGISLATION & WEBLINKS

Useful Links
http://www.legislation.qld.gov.au/

Free copies of Queensland legislation (use the Reprints they are updated to include amendments)

http://www.austlii.edu.au/

Full text of court cases dont use the legislation

because it isnt regularly updated.

http://www.dir.qld.gov.au/

Department of Industrial Relations website (starting

point for information on Occupational Health and Safety
and on Workcover)

http://www.workcover.qld.gov.au/

Workcover Queensland Homepage

http://www.ageing.health.gov.au/

Department of Health and Aging

Homepage of the Supreme Court of Queensland useful for full text of Queensland Supreme
Court judgements.
Homepage of the World Health Organisation one of the 6 organs of the United Nations, also
has links to Human Rights conventions.

Statutes
Acts Interpretation Act 1954 (Qld)
Criminal Code Act 1889 (Qld)
Guardianship and Administration Act 2000 (Qld)
Health Act 1937 (Qld)
Health Practitioners Act 1999 (Qld)
Health Services Act 1991 (Qld)
Mental Health Act 2000 (Qld)
Law Reform Act 1995 (Qld)
Penalties and Sentences Act 1992 (Qld)
Powers of Attorney Act 1998 (Qld)
Privacy Act 1988 (Cth)
Transplantation and Anatomy Act 1979 (Qld)
Transport Operations (Road Use Management) Act 1995 (Qld)
Workers Compensation Act 2003 (Qld)

Regulations
Health Regulation 1996 (Qld)
Health Practitioners Regulation 2000 (Qld)
Health Services Regulation 2002 (Qld)

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INDEX
Faculty LOs for MBBS I
Week
1

Topic
Duty of care

Medical Law

7
8
9

Medical Ethics
and Bioethics

Confidentiality
and Medical
Records
Classifications
and concepts
of diseases
Notifiable
Diseases
Ethical and
legal issues
involved in
medical
interventions to
prevent selfharming
behaviour

Consent
10

Intellectual
Disability and
Consent

Issue
1. Demonstrate an understanding of how basic ethical and legal
concepts inform the medical duty of care, including
o sympathy, compassion, care, need, harm
o autonomy, beneficence
o consent, medical necessity
o duty of care, standards of care, negligence
o duty of care in emergencies
1. Understand the broad connections between ethics and law, and
the uncertain nature of both.
2. Understand the broad principles, structures and categories of
the Australian legal system.
3. Describe the categories of Australian law relevant to medical
practice, and the range of legal processes to which doctors and
health institutions can be subject.
1. Describe the traditional ethical values of medical practice, and
how the discipline of bioethics has challenged some of these
values.
2. Explain how ethics and law are distinct, though related, contexts
for medical practice, and illustrate how both ethics and law often
fail to achieve certainty in pluralistic societies.
3. Critically appraise the strengths of your own ethical position, and
those of a conflicting position, in a contested area of medical
ethics.

Pp

Ch 2
Ch 3
Ch 4
Ch 2
Ch 1
Ch 13
Ch 14
Ch 2

Ch 11

1. Explain, in broad terms, how our notions of disease and disease

Ch 19

classifications have changed over the past two millennia.

Ch 12
1. Discuss the relationships between psychological and moral
autonomy.
2. Define the related concepts of autonomy, competence, best
interests and paternalism
3. Outline the ethical and legal limitations and obligations of
practitioners in dealing with mental illness and self-harm
(introduction only)
(a) What is the law regarding involuntary admission of
patients (both adults and minors)?
(b) What are the ethical issues associated with
interventions to prevent self-harming behaviour?
1. Outline the requirements for consent for medical interventions
and treatment in adults and minors.
1. Describe the psychosocial aspects of caring for people with
intellectual disabilities, and the phenomenon of under-diagnosis
and under-treatment of these people.
2. Describe the historical changes in perceptions of disability, and
the ethical values underpinning current practices / concepts
such as least restrictive alternatives, and the dignity of risk.
3. Demonstrate an understanding of the relationship between
decision-making competence and consent to investigation and
treatment in the context of disability.

Ch 2
Ch 10

Ch 5-9

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4. Describe the ethical basis for and implications of substituted
decision-making, the legal instruments in Queensland for its
implementation, and current reforms of these processes.
12

13

14

16
18

20

Discrimination
Genetic
Screening

Ethical and
personal issues
in chronic and
fatal illness
Tissue donation
by minors
Refusal of
treatment
Ethical,
regulatory and
policy issues in
artificial
reproductive
technologies
Ethical, legal,
professional
and public
policy
considerations
of abortion
Ethics of foetal
harms and
maternal
behaviour

21
22
24

26

Hypotheses of
Disease
Causation
Smoking
Relationships
between
medical ethics
and medical
etiquette
Adolescent
medicine:
autonomy

1. Understand the range of ethical issues associated with

screening for genetic disease and responses to results of
screening.
2. Demonstrate an awareness of the impact of genetic disease on
families and the community.
3. Describe the role of genetic counselling and the services
available for patient support
1. Explain the related concepts of quality of life, burdensomeness,
and futility as they relate to patients with serious chronic /fatal
conditions.
2. Discuss the implications of these concepts for decision-making
1. Identify the issues in informed consent for minors donating
tissue or organs for siblings.
2. Identify the potential conflict between the wishes of parents and
the interests of siblings in tissue transplantation
1. Understand the principles supporting patients' rights to refuse
medical treatment.
1. Describe the range of bioethical issues involved in the regulation
of artificial reproductive technologies.
2. Describe the range, types and complexity of regulation applied
to artificial reproductive technologies in clinical practice and
research.
3. Explain the barriers to consensus in regulating artificial
reproductive technologies in pluralistic societies such as
Australia.
1. Discuss the range of perspectives and arguments concerning
the morality of abortion.
2. Describe the relationships between social consensus on the
moral status of the foetus and the law on abortion, and the
limitations to the law's clarity on abortion.
3. Outline the professional obligations concerning the provision of
abortion.
1. Understand the relationships between maternal behaviour, foetal
harms and professional responsibility.
2. Understand the contested moral status and the legal status of
the foetus.
3. Understand the issues surrounding maternal consent for
antenatal interventions, and the contrasting professional
obligations to mother and foetus.
4. Understand the legal issues surrounding antenatal harm and the
related legal liabilities of doctors.
1. Proving Hypotheses & Disease Causation (History & Philosophy
of Science &Medicine).
2. Identify and discuss ethical issues in immunisation.
1. Medicine, the law, public policy and smoking - the history of
opposition to smoking in Australia. The role of the medical
profession (or its absence) in public health.
1. Rationales, requirements and abuses of referrals from general
practitioners to specialists.
2. Responsibilities and abuses of the student - doctor relationship.
3. Ethical obligations to and in respect of impaired colleagues
(introduction only).
1. Identify the potential conflict between the rights of the child and
the rights of the parent(s), in the context of developing
competence of the child or adolescent.

Ch 9
Ch 27
Ch 23

Ch 20

Ch 25

Ch 5-6

Ch 30

Ch 26

Ch 26

Ch 24

Ch 14
Ch 15
Ch 7-8

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27

28

30

Understand the
personal, family
and social
implications of
the frailties and
illnesses of
ageing
Dealing with
chronic illness

WorkCover
Rehabilitation

32

Alternative
conceptualisati
ons of health
and illness

33

Assent,
consent,
confidentiality
of Minors

34

Issues in
patient
autonomy

2. Discuss the issues of confidentiality and consent, which may

arise where the rights or roles of parents and children are in
conflict with respect to a medical consultation or proposed
treatment.
3. Identify the legal and moral rights of parents and children.
1. Reactions to separations and losses of life partner, home,
friends, independence.
2. Fears of and resistance to displacement, relocation and
institutional placement.
3. Issues of autonomy, competence, self-determination related to
dementing and related illnesses; the distinction between
autonomy and independence.
4. Issues in and structures for substituted decision-making.
5. Changes in the provision of institutional care for the elderly.
1. Confront ones personal reaction to problems that are insoluble
or respond poorly to treatment.
2. Distinguish between the personal and public meanings of
medical certification.
3. Distinguish between the ethical and legal requirement of veracity
in the issuing of certificates, and the associated issues of
demands for falsification and abuses.
4. Describe the range of medical certification.
5. Outline the range and extent of utilization of "alternative
therapies", and their underlying rationales.
6. Outline the usage and status of alternative and complementary
modalities within allopathic medical practice.
1. Describe the role of allied health professionals in assessing
functional capacity and in rehabilitation.
1. Discuss alternative conceptualizations of health, disease and
illness and their implications for the scope and aims of health
care and medical practice:
o essentialist and nominalist conceptions of disease
o statistical, functional, prognostic versions of abnormality
o descriptive and evaluative models of disease & illness
o medicalisation and disease
o scientific and alternative explanatory models
1. Explain the ethical issues of assent, consent, confidentiality and
privacy in relation to the developing autonomy of adolescent
minors, and appropriate approaches by treating doctors in
managing these issues.
2. Describe the current legal framework governing consent for
minors, and recent trends in law reform,
1. Understand and accept the patients right to make decisions
regarding management of their own health.
2. Understand the GPs role of continuing support after informed
choice.
3. Briefly discuss the doctors role in family crises.

Ch 21

Ch 9

Ch 18

Ch 20

Ch 28
Ch 29
Ch 19

Ch 8

Ch 7
Ch 5-9

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Resource Descriptions - EPPD Lectures for MBBS I

1 Duty of care

M Parker

Using the emergency case, this session introduces the duty of care
concept as it applies to medical practice. While medicine is motivated
to respond to basic human needs from sympathy and compassion,
(the motivations of the Good Samaritan), its activities are also
formalised in professional and legal conceptions of duty. Concepts
such as medical necessity and beneficence, autonomy and consent,
duty of care, standards of care and, in an introductory way, negligence,
liability and litigation are discussed. The basic law concerning medical
emergencies is examined. The obligations of students qua students is
discussed and contrasted with their future obligations as practitioners,
to illustrate (a) their assuming the responsibilities of a new role, and (b)
the variation in legally expected standards of care. Introductory ethical
and legal sources are suggested.

1 Introducing the
EPPD Domain

M Parker

This short lecture introduces the Ethics, Personal & Professional

Development domain of the GMC. It poses the question "What is it to
be a GOOD doctor?" and develops the argument that ethics and a
coherent set of personal values and qualities is as essential to the
practise of medicine as clinical competence and scientific knowledge.
Resources for this domain, and assessment in the summative
examination, are discussed.

2 Medical Practice M Parker

and The Law

Medical practice has traditionally proceeded in ignorance of the law,

although the law has always been one of medicine's crucial contexts.
In this resource session, the origin, purposes and fundamental
structures of Australian law are enunciated, together with the areas of
law of major relevance to medicine. The distinctions between statute
and common law, and civil, criminal, disciplinary and other areas of
law, are discussed, as well as introductory medico-legal concepts, and
a precis of the legal duties of doctors. The distinctions and
relationships between ethics and law are examined, and its
uncertainty, frequently a surprising feature of law to the uninitiated, is
emphasised.

3 Professionalism, M Parker
Accountability &
Self-Regulation

Professions may be defined as those social institutions which provide

fundamental services to the community on the basis of expert
knowledge applied within a framework of ethical propriety. Society has
traditionally accorded medicine with high social status, the privilege of
setting its own standards, educating its members and restricting entry
to the profession, and the freedom to discipline itself, as means for
maintaining high clinical and behavioural standards and protecting
patients from harm. Critics see professional autonomy as serving the
interests of doctors more than those of patients, and the recent decline
in respect for authority, rising consumerism and the assertion of rights
have resulted in challenges to medical hegemony in health care,
increased community participation in professional regulation, and
increased levels of medical litigation. The profession recognises that it
must be more responsive to the incidence of medical error, physician
impairment, violations of boundaries within the therapeutic relationship,
institutionalised biases and protections, and the need to maintain
education and clinical standards throughout doctors' careers. The
GMC introduces students to a range of accountability issues through a
number of dedicated resource sessions, but also by way of the
Personal & Professional Development Support Process. This aims to
detect health, attitudinal and behavioural problems involving students,
encourage their self-awareness and the ability to acknowledge
criticism and error, to intervene with advice and support, and to retain
an assessment function, all of which mirror the supportive but rigorous

112
disciplinary arrangements currently evolving within the profession at
large. This resource session introduces students to the changing
patterns of medical self-regulation and their application at the student
level.
3 Introduction to
Ethics, Medical
Ethics & Bioethics

C Cartwright Medical practice has always governed itself through ethical codes, but
explicit education in medical ethics is only a recent curricular
innovation. Ethics is the most basic critical study of good and bad, right
and wrong. Traditional medical ethics as given in codes and
statements is aspirational, but the critical aspect of philosophical
ethics, together with associated modes of enquiry such as medical
sociology, have subjected accepted medical practice and its codes to
scrutiny, particularly over the last three decades with the advent of the
discipline of bioethics. Problem-based learning lends itself to ethical
discussion and argument, but the aim is to develop students' critical
faculties beyond specific cases to discover the extent to which ethical
coherence may be achieved. The conflict of ethical principles, plural
values in society, and the inevitability of uncertainty and lack of closure
on issues will become evident. Students must cope with these aspects
from both intellectual and emotional points of view. Most teaching
through the GMC attempts to blend ethical and legal aspects of issues,
to indicate both the overlaps and the distinctions between ethics and
the law, and their influence on clinical practice. An indication of the
broad curriculum in ethics and professional issues, horizontal and
vertical integration will be provided.

3 Changing Ethics
in Medicine

M Parker

This LR summarises the development of medical ethics from the time

of Hippocrates. It illustrates how medical ethics and ethical codes help
to mark out the core values of the profession, but also how they have
been used in more pragmatic ways. Recent developments including
bioethics, explicit inclusion of medical ethics into medical school
curricula, and recent changes in medical self-regulation are discussed.
The resource provides a historical and conceptual background for the
domain, but specifically supports the EPPD resources in weeks 2 & 4.

7 History of disease P Giorgi

concepts &
classifications

The recent re-classification of peptic ulcer as an infectious disease is a

good example of revision in disease conceptualisation. The lecture
examines how the concept of disease has changed within western
medicine throughout its history, and how diseases have been variously
classified in different historical epochs. Despite many changes and
discoveries which produced new ways of thinking about disease, there
are many similarities between present understandings and some of
those of the ancient world. The changes and the similarities have
significance for what we think should be the present goals and scope
of medicine. The lecture introduces students to the historical context of
their profession, and to questions about the objectivity of science and
disease classification which are developed subsequently.

9 Autonomy,
paternalism,
intervention,
regulation

This case illustrates how ethical and psychological issues are deeply
intertwined. It introduces conceptual and applied aspects of autonomy,
competence, consent, refusal, paternalism, medical interventions and
limitations, and mental health regulation (introduction only). Do we
have the ethical and legal right to force treatment upon someone, even
if the patient has an apparently false belief, which may lead to her
death? The case introduces many aspects of the doctor-patient
relationship which may conflict in this controversial type of case as well
as the more everyday ones. The lecture uses case examples to
explore these issues, but connects them to the cognitive, psychological
and ethical concepts & principles involved. This is supported by a LR
which allows students to reflect about the issues in their own time,
cover pertinent readings, and generalise from the specific issues of the
week's case to a broader range.

M Parker

113
10 Intellectual
Disability and
Consent

N Lennox

The tutorial introduces historical changes in the way that people with
intellectual disabilities and their problems are perceived by the
community and medical carers, and the implications of these changes
for doctor-patient communication, community and legal support, and
the response of the health care system. While the common aetiologies
of intellectual disabilities are considered together with themes in the
psychological and social aspects of care, newer emphases such as the
principle of least restrictive alternatives and the dignity of risk are
discussed. Basic principles concerning informed consent are
introduced, and the particular implications for consent where decisionmaking competence may be diminished in the context of intellectual
disability are explored. The ethical and legal principles of substitute
decision-making are introduced, together with evolving legislative
reforms in this area.

12 Ethics of genetic J MacMillan

screening

This lecture will provide definitions of the term genetic screening,

contrasting it with genetic testing. Issues surrounding counselling and
informed consent, concepts of normality and abnormality will be
discussed. The implementation of some model screening programs will
be described. A normative framework encompassing ethical principles,
the social implications of screening, eugenics and legislation will be
presented.

16 Fatal illness,
treatment futility,
quality of life

This LR is designed to make the students sit back and put themselves
in the positions of patient and health care provider. The questions are
designed to provoke consideration of how events, feelings and beliefs
can effect the availability, delivery of and response to treatment. They
will consider quality of life issues, concepts of burden (for patient,
family, health system and society), the effects of chronic disease on
relationships and the problem of uncertainty. The process should be
largely intuitive and the limited readings offered focus on unfamiliar
areas such as medical futility, burden, and duty to others.

J MacMillan

18 Assisted
M Parker
Reproductive
Technology, Ethics
&Policy

This lecture reviews the nature of Australia's health system and the
general principles of health policy development, considers some recent
policy in the bioethical field, and then focuses on the development of
policy in the area of artificial reproductive technologies (ARTs). The
medical status of infertility, funding and access to IVF services, the
moral status of embryos, gamete donor identity, & recent issues such
as pre-implantation genetic diagnosis & sex selection, are briefly
discussed. The contested nature of the bioethical and conceptual
questions are highlighted, together with an indication of the responses
which have been made to the rapid development of ARTs. The
variability in these responses, the lack of consistency and uniformity
across jurisdictions, and attempts to improve this, are emphasised.
Developing policy for a pluralistic society in this area is fraught with
difficulty.

20 Abortion: Ethics M Parker

& Law

This lecture presents abortion as a complex social issue for pluralistic

societies. Bioethical concepts and arguments relevant to abortion are
introduced, and the relationships between various conceptions of
foetal status & rights, and public policy positions on abortion, are
discussed. The current status of abortion law is covered, with particular
reference to the role of doctors in the provision of abortion services.
This session should encourage students reflections about the issue at
personal, social, ethical, professional and legal levels.

20 MF OG - Ethical M Parker
issues in the
antenatal period

This resource complements the lecture on abortion, by extending and

applying considerations of the moral status of the foetus and its legal
rights. The knowledge that numerous factors affect foetal development
suggests responsibility for those factors and behaviours over which the
mother might exert some control. With the consumption of alcohol,
nicotine and other drugs, the extent of such responsibility is contested.

114
The potential conflicts between practitioners' duty to optimise the
health of the foetus and their duty to respect the autonomy of the
mother are addressed. Consent and refusal of consent to suggested
medical intervention presuppose adequate educational strategies to
ensure that women are informed of potentially harmful behaviours, and
these are emphasised. The complexities concerning the legal rights of
the foetus (while it is not a person, it is still the subject of interests
which 'crystallise' at birth) are introduced. Negligence suits brought by
children against doctors and, in some cases, their mothers, are
discussed.
21 Vaccination:
F de Looze
public health,
effectiveness, risks

An opportunity for students to become aware of the achievements in

infectious disease control that have been, could be and will be
achieved by the immunisation of populations against diseases of public
health importance. In addition to defining 'public health importance',
should also become aware of the problems associated with achieving
high vaccination coverage and thus herd immunity. The increased
influence of alternative medical ideas concerning vaccination will be
addressed, as will the ethical conflict between protection of children
against disease and parents' rights to determine their children's health
status. This topic is also a good opportunity to introduce the idea of
cost effective prevention programs. Examples come from both
Australia and overseas. Resource material should include a copy of
the latest NH&MRC Procedures Handbook currently in its seventh
edition.

22 Introduction to C Del Mar

smoking and
cessation strategies

This resource provides a perspective on the use of tobacco in our

society. Analysis of the potential for intervention at an opportunistic
level or in specific programs will be presented. The efficacy of public
health interventions that help individuals to quit smoking, both at the
individual level and community level, will be presented. A model for
general practitioners providing smoking cessation and the
effectiveness of different methods will be introduced. Students are
encouraged to think about counselling interactions, which encourage
and support patients to make lifestyle changes.

24 Ethical
interactions with
colleagues and
others

This learning resource introduces the overlapping fields of medical

etiquette and ethics: how the field of medical ethics has increased in
importance, but how aspects of medical etiquette have significant
ethical implications. The gatekeeper role of primary care physicians,
referral practices, requirements, rationales and abuses are examined.
Student - resident - consultant relationships are important forerunners
of future professional relationships, and problems in this area are
discussed in a growing literature. Whistle blowing, and the ethical
obligations concerning impaired colleagues are introduced.

M Parker

26 Role & rights of J Nixon

parents and
children

Following the introduction to adolescent medicine in a previous

problem, an understanding of the development of autonomy in relation
to physical maturation, sexual maturity and emotional development
has been perused. Medical problems common in adolescence reflect
in part the interplay between physical and psychosocial development
and the recognition of the unique features of physician-patient
relationships during this period. Major issues include confidentiality
and consent. The autonomy that develops during adolescence and the
potential for conflict that this might provide for both parents and
children is balanced against the legal and moral rights of parents and
of children.

28 Certificates:
legal and ethical
responsibilities

Certification extends the diagnostic process from the purely medical

sphere to the public arena of work, education etc. and exemptions
therefrom. The responsibility inherent in the judgement required for
certification is emphasised, and the potential abuses of the process
discussed. Patient pressure for inaccurate certification challenges

A Bradley

115
professional integrity and the medical ethical principle of veracity.
Dealing with these pressures is introduced. The varieties of
certification and their legal aspects are introduced.
32 Concepts of
Disease, health &
illness

M Parker

This learning resource explores the different ways in which we go

about conceptualising, defining and classifying health, disease and
illness, and examines our assumptions about and allegiances to the
scientific objectivity of diseases. Descriptive and evaluative models of
disease are introduced. Variations in availability of coherent scientific
explanatory theories for diseases are shown to produce perceptions of
some conditions as less "real" than others, and less worthy of support.
These different conceptions have implications for health funding
allocation. The concept of medicalisation is introduced. Links are made
with previous coverage of the history of disease classifications,
definitions of normality & abnormality, and forthcoming topics including
health care policy-making, proof of hypotheses, death & dying,
psychiatric diagnosis; brain/mind distinctions and so on.

33 Consent for
minors

M Parker

The lecture examines ethical issues arising from teenagers' developing

maturity, decision-making competence and autonomy in the context of
providing medical care in their best interests. Legal precedent, current
legal frameworks and recent suggestions for reform of the law
concerning consent for minors are covered.