Law for Nurses and Midwives. Edition No. 10

Table of Contents

Section 1

INTRODUCTION (1) 1 AN INTRODUCTION TO THE LAW AND AUSTRALIA’S LEGAL SYSTEM (2) Where does our law come from? (4) The difference between criminal law and civil law (7) Administrative structure of Australia’s legal and court system (12) 2 THE RELATIONSHIP BETWEEN LAW AND ETHICS (18) The application of law and ethics to practice (18) Ethics: what it is (20) Ethics: what it is not (20) Major ethical theories (23) 3 THE INTERNATIONAL CONFEDERATION OF MIDWIVES CODE OF ETHICS FOR MIDWIVES AND THE INTERNATIONAL COUNCIL OF NURSES CODE OF ETHICS FOR NURSES (30) How does a code of ethics differ from a code of conduct? (31) How do the ICM code and the ICN code compare with the NMBA codes of conduct for midwives and nurses respectively (2018)? (32)

Section 2 - COMMENCING AS A PROFESSIONAL (41)

4 PROFESSIONAL REGULATION OF NURSES AND MIDWIVES (42) Relevant legislation and structure of the scheme (42) Principles of the national scheme (46) The national registers (46) The elements of professional regulation (49) Codes of conduct and ethics and competency standards/standards for practice (51) Endorsements under section 94 of the National Law (54) Endorsement as a nurse practitioner under section 95 of the National Law (56) 5 THE CONTRACT OF EMPLOYMENT INCLUDING WORKPLACE HEALTH AND SAFETY AND WORKERS COMPENSATION (67) The contract of employment (67) The creation of an industrial award or workplace agreement (69) How the contract of employment is terminated (72) The legal perspectives of workplace health and safety (74) Workplace health and safety legislation (74) Workers compensation (79) Practical considerations and advice concerning workers compensation (85) The employer's obligation to provide a safe system of work (86)

Section 3 - PROFESSIONAL PRACTICE (88)

6 CONSENT TO TREATMENT (INCLUDING THE RIGHT TO WITHHOLD CONSENT, END-OF-LIFE PLANNING, NOT FOR RESUSCITATION ORDERS, AND THE RIGHT TO DETAIN AND RESTRAIN PATIENTS WITHOUT THEIR CONSENT) (89) Why is consent important? (89) Negligence must be distinguished (90) What information is available to help professionals and patients? (93) How may consent be given? (93) What are the elements of a valid consent? (95) The right to withhold consent to treatment (117) The right to request assistance to end your life (121) The right to restrain or detain patients without their consent (123) 7 PROFESSIONAL NEGLIGENCE (130) The development of common law principles in relation to allegations of professional negligence and legislative changes affecting them (130) Professional negligence in a healthcare context (131) The principle of duty of care as it applies to a nurse and midwife (131) Second principle in civil action alleging professional negligence: determining the standard of care expected of health professionals (134) Determining the standard of care expected of nurses and midwives (140) Should a nurse or midwife question treatment or medication orders as part of the duty and standard of care (167) Third and fourth principle in civil action alleging professional negligence: damage suffered and the principle of causation and the scope of liability for negligent acts (170) The awarding of compensation by the courts (175) Defences to an action alleging professional negligence (176) Vicarious liability (178) Professional indemnity insurance requirements for health professionals, including nurses and midwives (183) The employer's direct liability for negligent employees (184) The nurse or midwife as a good samaritan (185) Time limits or limitation periods for bringing a civil negligence claim (186) Provisions of an apology within the context of potential civil liability for negligence (187)

Section 4 - NURSING PRACTICE (191)

8 THE ADMINISTRATION OF DRUGS (192) Examining the relevant regulations (196) Problem areas with drugs (198) Endorsements for administering medication under the new national registration scheme (202) Criminal and professional issues relating to the administration of drugs (203) 9 DOCUMENTATION AND CONFIDENTIALITY OF AND ACCESS TO PATIENT RECORDS (INCLUDING E-RECORDS, INCIDENT REPORTING AND OPEN DISCLOSURE) (205) The role of clinical documentation in healthcare delivery (205) Integrated record-keeping (209) Reading the patients’ records (209) The value of good records when used as evidence in court (209) Documentation and report writing in an aged care facility (211) E-health records and the Australian digital health agency (212) Confidentiality of healthcare records (213) Reporting and documenting adverse events and clinical incidents (216) Open disclosure (219) Section 5 - SPECIALISED AREAS OF PRACTICE (223) 10 MENTAL HEALTH (224) The establishment of principles governing mental health care and treatment in Australia (224) The legislative framework for the provision and regulation of mental health care and treatment in Australia (226) Overview of the mental health legislation of each state and territory (231) Australian Capital Territory: Mental Health Act 2015 (232) New South Wales: Mental Health Act 2007 (239) Northern Territory: Mental Health and Related Services Act 1998 (incorporating amendments arising from Northern Territory Mental Health and Related Services Amendment Act 2007) (245) Queensland: Mental Health Act 2016 (251) South Australia: Mental Health Act 2009 (257) Tasmania: Mental Health Act 2013 (263) Victoria: Mental Health Act 2014 (268) Western Australia: Mental Health Act 2014 (273) 11 CORONIAL JURISDICTION (283) The role of the coroner in Australia’s legal system (283) ????The coroner’s court structure in Australia (283) A coroner’s court inquest (286) The relevance of a coroner's inquest for nurses and midwives (288( 12 HUMAN TISSUE TRANSPLANTATION (293) History and background of human tissue transplantation and research (293) The development of law in relation to the use of human tissue (295) Ongoing difficulties with organ donation (302)

INDEX (309)

Authors

Patricia J Staunton Barrister-at-Law of the Inner Temple, London, United Kingdom. Mary Chiarella Professor Emerita, Susan Wakil School of Nursing and Midwifery, University of Sydney, NSW, Australia.