DLEPP Flashcards
Describe the elements of a Human Right
Social or public goal Focus on the dignity of persons Equality and non-discrimination Participation of individuals and groups in matters that affect them to protect human rights Rights imply entitlements Human rights are interdependent Almost never absolute and may be limited
What is a right to health?
A broad concept that encompasses the determinants of health including:
Access to health care
Safe drinking water and adequate sanitation
Safe food
Adequate nutrition and housing
Gender equality
What are the limitations to a right to health?
It does not refer to:
Guarantee of a person’s good health or right to be healthy
How does right to health differ from a right to health care?
Right to health care only encompasses the provision of medical services and access to them. It is thus a branch of a broader concept, which is a right to health.
Discuss the concept of right to health in Australia.
There is no right to health or right to health care in Australia. It is somewhat recognised in the Health Insurance Act through Medicare.
What happens when a country breaches a right to health?
Right to health is monitored by committees which provide written reports to countries. IF a state party ignores the recommendations, or breaches a human right, there is nothing that international human rights law can do except shun them in the international community and damage their reputation.
However, if a country incorporates a right to health into domestic laws, it enables the courts to adjudicate violations.
What are some arguments for and against a right to health in Australia?
For:
Enables people to have a legal remedy should the government breach its obligations with respect to the right to health.
Protect people from discrimination and reduce health inequities in marginalised populations.
Force the government to prioritise the right to health
Improve government policy making and administrative decision making
Against:
Fear of increased litigation
It would be undemocratic because it might give unelected judges too much power over important social issues
concern that there are not enough resources to give effect to the right to health
it would restrict rights, as to define a right is to limit it
What are the components needed for someone to be competent?
They must understand information, retain information, use information to weigh up decision and communicate the decision
What are the components required for informed consent?
Must be given freely and voluntarily
Must cover the procedure to be performed
Must cover the person performing the procedure
Musst have sufficient information (risks, benefits and alternatives)
Must be given by a competent patient
When can an action of battery or negligence be used by a patient in regards to informed consent components?
A failure to meet components 1-3 (freely given, cover procedure and cover person performing) can result in an action in battery
A failure to comply with component 4 & 5 (sufficient information and not a competent patient) can result in an action in negligence
What law was espoused from the Rogers v Whitaker case?
A doctor has a duty to warn a patient of a material risk inherent in proposed treatment. A risk is material if:
A reasonable patient would attach significance to the risk (e.g. permanent disability or death) OR
The doctor is aware the patient would attach a significance to a risk if they were informed of it
What is therapeutic privilege?
Can withhold information from a patient if you are confident that it would cause serious harm to the patient’s health or welfare.
E.g. when doctor did not warn patient of blindness site effect for mental health drug - reasoning that they would likely get hysterical blindness or refrain form using the drug they needed
It is rare for this to be successful and should only be used for life-saving treatment if really necessary.
Describe the law in regards to a patient’s ability to refuse or demand medical treatment
An individual can refuse treatment (including life-saving treatment) provided they are assessed as competent.
E.g. Brightwater care group v Rossiter: was not terminally ill but required PEG to be fed but requested PEG taken out
There is no duty of a doctor to provide a particular type of treatment, especially if it is not clinical indicated. (although should offer to arrange a second opinion)
Outline the law regarding Abortion in Queensland
Abortion in QLD is illegal unless:
The doctor believes, in good faith, the pregnancy will cause greater physical and mental harm to the woman than if it were aborted. This can include current and future mental & physical health, but NOT economic or psychosocial wellbeing. This can only occur up until 22 week gestation.
Outline Abortion in regards to the Criminal Code sections (i.e. actions that lead to criminal charge in regards to abortion).
224: Any person who, with intent to procure the miscarriage or a women, unlawfully administers the drug is liable to imprisonment for 14 years
225: any woman with intent to procure her own miscarriage administers herself a drug, then is liable to imprisonment for 7 years.
226: any person who unlawfully supplies to or procures for any person a drug knowing it is intended to be used for miscarriage is liable to imprisonment for 3 years
282: doctors can surgically instigate abortion if it would save the woman’s life. If the administration by a health professional of a substance to a patient would be lawful under this section, it would only be if the pregnancy is endangering a woman’s life.
Outline the law regarding negligence claims for wrongful life
An action brought by a child complaining of negligent conduct before birth, which results in its birth and had their been no negligence it would not have been born. (i.e. the child would have been better off not being born at all)
THIS IS NOT VALID ACTION IN AUSTRALIA.
This is because courts see it as “devaluing” the lives of disabled (among other regions)
Outline the law regarding negligence claims for wrongful birth.
An action brought by the parent of an initially unwanted or unintended child (regardless of disability or not) as a consequence of negligence before birth. (e.g. unsuccessful sterilisation or contraception)
Under what circumstances can confidential information be disclosed without legal consequences?
No breach if the patient consents to the disclosure
Mandatory reporting (child abuse, notifiable diseases, drug and alcohol abuse, etc)
Courts can compel production of medical records (but try to question the necessity of it)
May disclose to other health carers directly involved in the patient’s care.
Giving information in good faith about a person’s medical fitness to hold a driver’s license
If you believe the person may have been involved in an indictable offence
Who owns medical records and when can access be denied?
Medical records are owned by the doctor. Patients may ask for medical records without reason and it should be granted within 30 days and can charge for administration fee.
Can deny access if:
Information would pose a serious threat to someone
Information would have an unreasonable impact on someone else’s privacy
Information related to existing or anticipated legal proceedings
Request is frivolous or vexatious
Outline the Australian Privacy Principles
- Open and transparent management of personal information
- Anonymity and pseudonymity
- Collection of solicited personal information should only be used for the purpose it was collected
- Dealing with unsolicited personal information
- Notification of collection of personal information
- Use or disclosure of personal information (can only be used for diagnosis and treatment but may be other times when need to provide it for third party government service)
- Direct Marketing (get permission if you want to use information for marketing purposes)
- Cross border disclosure of personal information
- Use or disclosure of government related identifiers (don’t use them)
- Quality of personal information (obligation to keep accurate and up to date)
- Security of personal information (take reasonable steps to protect it)
- Access and Correction
- Correction of personal information (fix any errors; if you don’t think its incorrect provide written notice and method of complaint)
What patients are deemed incompetent?
Unconscious Minors/Children Heavily intoxicated Dementia Mental Illness affecting ability to weigh information provided
Incompetency fluctuates and therefore must be reassessed for each medical decision.
Describe the hierarchy of decision making for incompetent patient according to the Guardianship and Administration Act
- Advanced Health Directive
- Guardian (if one has been appointed by the Guardianship and Administration Tribunal)
- Power of Attorney (Financial power of attorney does NOT count)
- Statutory Health Attorney:
a. Spouse of the adult if the relationship is close and continuing
b. A person > 18yo who has care of the adult but is not paid
c. A person >18yo who is a close friend or relation but not a paid carer
What are the limitations of substitute decision makers?
Cannot consent to: Live organ donation Sterilisation Termination of a pregnancy Participation in medical research Electroconvulsive therapy
What happens when there is a disagreement between Statutory Health Authority and medical practitioner?
Need to contact the adult guardian who will have the final say.
The only exception is a medical emergency where:
Health care decisions need to be made urgently as there is imminent risk to the patient’s health.
Health care decisions need to be made to prevent significant pain or distress tot he adult and is not reasonable practical to obtain consent.
In the above scenarios, the doctor can act as they see fit.
