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Introduction to Law and Ethics (Iwan Dowie, July 2012)

Faculty of Health, Education, Psychology & Sport

Introduction to Medical Law & Ethics Resource Book

This resource book contains information related to the module. Some important themes are discussed, and there are activities for you to complete. At the end of the resource book, templates for essay writing (focussing upon legal and professional topics) are provided. These are to help you with your assignment, but must not be reproduced in any form as part of your assignment. Please note that for some students the templates for essay writing may not be applicable.

This book can be used to supplement undergraduate and postgraduate courses; such as law and ethics in primary health care, and the legal component for the BSc Medical Sciences programme.

ŠUniversity of Glamorgan. Iwan Dowie. 10th Edition 2013

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Contents Preface – page 3 Table of Cases – page 4 Table of Statutes – page 5 Learning Outcomes – page 7 Introduction to Law – page 8 Constitutional Law – page 9 Healthcare & the Law – page 14 Introduction to Negligence: The Duty of Care – page 15 Standards of Care – Medical – page 18 Record Keeping – page 19 Mental Capacity – page 22 Mental Health Act – page 24 Confidentiality – page 28 Law Relating to Reproduction – page 29 Consent (with capacity) – page 33 Introduction to Ethics – page 34 Autonomy – page 37 Beneficence – page 39 Non – Maleficence & Principle of Double Effect – page 40 Acts and Omissions Doctrine – page 41 The Concept of Rights – page 42 The Human Rights Act 1998 – page 43 Utilitarianism – page 47 Deontology – page 48 Deprivation of Liberty – page 54 Equality Act 2010 – page 63 Family Law for Healthcare Professionals – page 66 End of Life – page 72 Assignment guidance – page 74 Important Legal Cases in Medical Law – page 80 Ethics & Medical Law – a template answer – page 87 Politics & Healthcare – page 89

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Other Legal Principles and Cases – page 91 Revision Questions – page 92

PREFACE During your module you will study legal and professional issues applicable to healthcare and clinical practice. This resource book has been designed to compliment your studies, and will assist you to formulate ideas for discussion during lectures, tutorials and seminars. Key points, cases and statutes are highlighted in bold font. The resource book is divided into two parts; part one will examine the law, whilst part two will discuss some ethical theories and principles as well as some related legal issues. In both parts there are some activities for you to complete. Following these two parts there will be other sections dealing with more specialist areas. If citing from this resource book please use the following format: Dowie I (2012) Introduction to Medical Law & Ethics, 10th Ed, University of South Wales, Pontypridd. This resource book is not for reproduction in any format without prior permission from the University of Glamorgan. This resource book can be used for any healthcare professional, although for ease of use reference to the doctor (medical practitioner) and nurse is predominant. English law is the main theme of this workbook, unless explicitly stated. The Module team hope you enjoy this workbook. Please send comments relating to this workbook to Iwan Dowie, Module Leader, Room 7012 or iwan.dowie@southwales.ac.uk

A list of key lecturing staff involved in the delivery of law and ethics is provided on page 113. On page 100 there is a section devoted towards holism and concepts of care – this section does not need to be completed for focus to theory hours, and is included for information purposes only. Note to reader: The material presented in this resource book will apply to most healthcare practitioners – however most medico-legal issues relate to the medical practitioner. This does not imply that the applicability of the cases and statute laws will have no bearing upon your clinical practice unless you are a medical practitioner.

Personal Details:

Name:

Course:

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Table of Cases

Ahsan v. University Hospital of Leicester NHS Trust [2006] EWHC 2624 (QB) 85 Airedale NHS Trust v. Bland [1993] 1 All ER 821 HL 72 76 85 Anderson v. Forth Valley Health Board [1988] 44 BMLR 108 31 Ashworth Hospital v. MGN Ltd [2002] 1 WLR 2033 28 84 Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 18 Bolam v. Friern Barnet HMC [1957] 2 All ER 118; 1 WLR 528 18 82 Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771 18 82 Brown v Board of Education of Topeka [1954] 347 US 483 46 Caparo Industries plc v. Dickman [1990] 2 AC 605 82 Chatterton v. Gerson [1981] 1 All ER 257 QBD 33 86 Chester v Afshar [2004] 1 AC 134, 3 WLR 927, 4 All ER 587 33 th

Deacon v McVicar and another [1984] QBD 7 January 81 Donoghue v. Stevenson [1932] AC 562 17 20 75 82 Gaskin v United Kingdom [1990] 12 EHRR 36 20 Gillick v. West Norfolk and Wisbech A.H.A and the DHSS [1985] 3 All ER 402 66 83 th

th

HL v. United Kingdom [2004] ECHR 720, Application No 45508/99 5 Oct 2004; TLR 19 Oct 2004 54 Janaway v. Salford A.H.A [1988] AC 537 30 JE v. DE and Surrey County Council [2006] EWHC 3459 (Fam) 60 61 62 85 Marriot v. West Midland RHA [1999] Lloyds Rep Med 23 19 81 McLennan v. Newcastle HA [1992] 3 Med LR 20 81 Nettleship v. Weston [1971] 2 QB 691 18 86 Paton v. United Kingdom [1980] 3 EHRR 408 30 R vs. Bodkin-Adams [1957] Crim LR 365 73 R v. Cox [1992] 12 BMLR 38 73 R v. Human Fertilisation and Embryology Authority ex parte Blood [1997] 2 WLR 806 32 R v. Sheffield H.A. ex parte Seale [1994] 25 BMLR 32 Rance v. Mid Downs H.A. [1991] 1 QB 587 31 76 Re B (a minor) (wardship: sterilisation) [1987] 2 All ER 206 68 Re C (Adult: Refusal of Medical Treatment) [1994] 1 WLR 290 22 24 38 75 83

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Re C (Welfare of Child: Immunisation) [2003] EWCA Civ 1148, 2 FLR 611 68 Re D (a minor) (wardship: sterilisation) [1976] 1 All ER 327 67 Re E (a minor) (wardship: medical treatment) [1993] 1 FLR 386 FD 67 Re H (Children) (Contact Order) No 2 [2002] 1 FLR 22 71 Re K [1988] 1 Ch 310 24 Re MB (an adult) (medical treatment) [1997] 2 FCR 541 83 Re P (a child) (Residence Order: Child’s Welfare *1999] 3 All ER 734 71 Re PS (An Adult) [2007] EWHC 623 (Fam) 61 Re S [2005] 1 FLR 236 70 Re T (an adult) (refusal of medical treatment) [1992] 4 All ER 649; 3 WLR 782 76 83 Re W (a minor) (medical treatment) [1992] 4 All ER 627 66 Saunders v. Leeds Western [1993] 4 Med LR 355 19 81 Schloendorff v. Society of New York Hospital [1914] 105 NE 92 22 55 74 Sidaway v. Bethlem Royal Hospital [1985] AC 871 33 77 Thake v. Maurice [1986] QB 644 32 33 W Primary Care Trust v. TB & Ors [2009] EWHC 1737 (Fam) 60 W v. Edgell [1990] 2 WLR 471 28 84 Wilsher v. Essex Area Health Authority [1986] 3 All ER 801 HL [1988] 1 All ER 871 CA 19 X v. Y [1988] 2 All ER 648 84

Table of Statutes

Abortion Act (1967) 29 30 76 Access to Medical Records Act (1990) 20 77 Adoption and Children Act (2002) 71 Anti-terrorism, Crime and Security Act (2001) 8 Birth & Deaths Registration Act, 1953 72 Children Act (1989) 66 67 68 70 Children Act (2004) 68 70 Children and Young Persons Act (1933) 68 70 Coroners Act, 1988 72

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Crime and Disorder Act (1998) 70 Data Protection Act (1998) 10 19 28 77 Disability Discrimination Act (1995) 63 Employment Equality (Age) Regulations (2006) 63 Equal Pay Act (1970) 63 Equality Act (2010) 63 64 65 Female Genital Mutilation Act (2003) 70 Government of Wales Act (2006) 11 Homicide Act (1957) 27 Human Fertilisation and Embryology (Deceased Fathers) Act (2003) 32 Human Fertilisation and Embryology Act (1990) 29 32 76 Human Fertilisation and Embryology Act (2008) 32 Human Rights Act (1998) 29 43 44 45 46 55 56 58 77 Infant Life Preservation Act (1929) 31 76 Manual Handling Operations Regulations (1992) 11 76 Medical Act (1983) 14 Medicines Act (1968) 76 Medical Devices Regulations (2002) (amended 2008) 11 Mental Capacity Act (2005) 10 22 23 24 38 54 55 60 61 74 75 88 Mental Health Act (1983) 24 25 26 27 Mental Health Act (2007) 24 25 26 27 54 Nurses, Midwives and Health Visitors Act (1997) 14 Offences Against The Person Act (1861) 30 Public Interest Disclosure Act (1998) 68 90 Race Relations Act (1976) 63 Sexual Offences Act (2003) 69 Special Education Needs and Disability Act (2001) 68 Still-Birth (Definition) Act (1992) 31 Suicide Act (1961) 73

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

Learning outcomes

By the end of part one (Introduction to Medical Law) the student should be able to;

Define what a law is Identify where laws are made Define criminal and civil law Have an overview of basic legal terminology Discuss the importance of accountability, duty of care and standards of care in healthcare practice Discuss the importance of record keeping Identify how a healthcare practitioner can treat a patient or client who lacks mental capacity Have an overview of mental health legislation Discuss the importance of confidentiality in healthcare practice Identify the role of the healthcare practitioner in reproductive law

By the end of part two (introduction to Ethics) the student should be able to;

Define what ethics is Explore the key principles of ethics, such as autonomy, beneficence, non-maleficence, double effect and the acts and omissions doctrine. Discuss the concepts of rights and explore the effect of the Human Rights Act in healthcare practice Have an awareness of the key ethical theories for example utilitarianism and deontology

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

Part 1 - Introduction to Medical Law Activity 1: What does the word ‘law’ conjure up to you? Does a law differ from a rule?

Hopefully you may have come up with following points; Law is not exclusively…..Custom – for instance Welsh custom can involve the wearing of a leek during St David’s Day, although it is not against the law not to wear a leek! Rules – Golf Clubs, Rugby Clubs all have rules to ensure good conduct of the game and its members. Your home will also have rules, such as wiping your feet on the mat before entering the house. However many of these rules are informal and have no state sanction applied to them. Fair! Some laws are often malicious and seek to cause intentional harm! For example the Nuremburg Laws (1936) stripped German Jews of the right to German citizenship. Ultimately the Nuremburg laws provided a legal basis for the eventual extermination of six million Jews in the concentration camps. Apartheid is another example of unfair legislation used to classify and segregate people into racial groups during the second half of twentieth century South Africa. Even in the UK some people will view legislation such as the Anti-terrorism, Crime and Security Act (2001) as deeply unfair and wrong because there is a potential that it may discriminate against certain religious groups.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Law though is:

Rules which have to be obeyed by everyone living in the land the law applies to. If you break the rules of that land, you can be punished by the courts of that land. Sometimes law can be extraterritorial, meaning that if you did some action that would be perfectly legal in another country (such as smoking cannabis, which is classified as illegal under UK law), you may still be prosecuted in the courts of this country on your return home.

Definition of the Law All the rules which could result in the courts (as representatives of the state) taking action against us if we break those rules are called laws. In other words the state can impose sanctions upon us.

“The law may be defined as a rule of human conduct, imposed upon and enforced among, the members of a given state.�

Barker & Padfield (1996) pg 1.

Constitutional Law Constitutional law explores how laws are made and who can make them. This section will begin with sources of law, followed by a brief overview of the court system and some of the legal terminology used. Sources of Law

Laws are made in a variety of places. These places are referred to as sources.

Activity 2: Identify three main sources of law

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

In your answer you should have made mention of parliament as a source. You may also have included law made by judges (common law). However laws are made in a variety of places and in the following section these are explained in more detail.

Statute Law: These are made at Westminster usually in the House of Commons. Statutes are often referred to as Acts of Parliament and statutory instruments. Prior to an Act being passed, parliament will discuss and scrutinise the content of the proposed act. These proposals are referred to as Bills. A Bill only becomes an Act once it has received Royal Assent. These Acts will take precedence over all other laws. Examples of statute laws include the Data Protection Act (1998) and the Mental Capacity Act (2005). The cited date is the date the act was passed in parliament, however it may not come into force for a couple of years, for example the Mental Capacity Act (2005) came into force in 2007. This allows people the chance to become familiar with the law prior to implementation.

Common Law: Also known as case law. Case law is made up of decisions by judges in individual cases. A judge is bound by previous decisions made by judges in earlier cases, if the decision is made by a higher court. A case that establishes a rule or principle is referred to as setting a precedent. Judges in later cases can use the rules etc made by the earlier case to decide the outcome of a case. Binding precedents are precedents set by a higher court of which judges in lower courts are obliged to follow.

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

European Law: European law is made up of regulations & directives; and decisions made by the Court of Justice/Human Rights. Regulations require the member state to implement the law almost immediately. Directives however will provide the member state an aim or goal which it must meet; however it is up to the member state how it will achieve this aim/goal. Usually there is a longer period of time before a directive needs to be implemented. Both regulations and directives must be published in the Official Journal before they become valid. An example of a regulation is the Manual Handling Operations Regulations (1992). This regulation places a duty upon practitioners to assess the risk of handling and to minimise harm when handling to oneself and others. The Medical Devices Regulations (2002) (amended 2008) regulates the safe use of medical devices upon patients, and is another example of how European legislation influences clinical practice.

International Law: This can include international treaties, obligations, and conventions. For example, when Iraq defied United Nations resolutions, the USA and UK used this breach as a legal basis for taking military action. However International law is difficult to honour with large powerful nations, for example USA, Russia and China. It would be difficult to foresee a situation when action would be taken against these nations, unless under extreme circumstances. UK law sometimes looks to international law to establish any persuasive authorities which can apply to a case.

The National Assembly for Wales The National Assembly now has the powers via The Government of Wales Act (2006) to pass its own form of primary legislation. These laws are not referred to as Acts of Parliament or Assembly, but rather they are known as Welsh Assembly Measures. The NHS Redress (Wales) Measure (2008) was 11


Introduction to Law and Ethics (Iwan Dowie, July 2012) the first measure to be passed by the National Assembly, which allows patients to receive compensation a lot quicker, than prior to the measure being enacted. Westminster however still has to allow the National Assembly the power to pass its own legislation, unlike in Scotland and Northern Ireland (However after the 2011 referendum held on the 3rd March, resulting in a ‘Yes’ victory – Wales will now be able to make Acts of the Assembly, and will no longer need Westminster’s consent to pass laws in the 20 fields of which it has responsibilities for).

Church Law In some cases law can derive from ecclesiastical sources, often described as Canon Law. The Church of England for example can pass measures on a range of ecclesiastical matters. However in recent years ecclesiastical law has become less powerful.

The Court System – England & Wales Criminal Courts – in the criminal court alleged crimes against the state are heard. For example a doctor intently uses drugs to kill his patients. If found guilty he would probably face a custodial sentence. The state (in the name of the Queen/King) will act as the prosecutor. Civil Courts – the civil courts act as an arbitrator between alleged wrong-doing’s against a person or persons - for example negligence actions that resulted in harm, or contractual obligations being breached. Industrial tribunals/Professional hearings/employment tribunals (for example the GMC, HPC, NMC) – alleged professional or employment transgressions are heard – however those transgressions may not have broken any laws. Coroners Courts – Coroners have the power to hold enquiries over a suspected death. They can call for statements and witnesses to determine cause of death or to ascertain/explore the events that led to a person’s death. European Courts – these courts can hear cases that involve an alleged transgression by a member state against a person or an organisation. The European Courts have the power to fine member states if found guilty of not upholding European law. International Tribunals – Often used in alleged human rights abuses. The Nuremburg trials after World War 2 are an example of an international tribunal/court. Criminal and Civil Law Definitions – England & Wales

A crime is an act against the State. Breach of the criminal law can be followed by prosecution in the criminal courts – prosecutions are made in the name of the King or Queen (using R verses Anybody as the citation.) R stands for Rex (Latin for King) or Regina (Latin for Queen).

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Introduction to Law and Ethics (Iwan Dowie, July 2012) A civil wrong is an act against a person. A civil wrong is heard in the civil courts, the sole purpose of which is to grant compensation.

Below you will see a structure of the civil courts and criminal courts.

Civil Courts: Structure Supreme Court

Court of Appeal High Court County Courts

Magistrates Courts

Criminal Courts Structure Supreme Court Court of Appeal

Crown Court Magistrates Court

Please note that the Supreme Court took the place of the House of Lords in October 2009, although its functions are similar.

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

Legal Terminology Criminal

Civil

Action

Prosecution

Sue

Purpose

Punish /Deter

Compensation

Standard of proof Burden of proof Outcome

Beyond a Balance of reasonable doubt probabilities Crown Accuser Guilty/not guilty

Success or loss

Healthcare & the law Most Healthcare professionals are legally regulated. The nursing profession is governed by statute law – The Nurses Midwives & Health Visitors Act (1997). Medicine (Doctors) is governed via The Medical Act (1983). Accountability and negligence are two of the most important aspects of law for nurses, doctors and other healthcare professionals to consider.

Introduction to Accountability

“Accountability is concerned with how far the nurse/doctor can be held in law to account for his or her actions” Dimond (2008) For example the nursing code of conduct states: ‘As a registered nurse, midwife or health visitor, you are accountable for your practice’ (NMC, 2008: The Code). Other code of conducts for other professions will state similar sentiments. Remember though that any Code of Professional Conduct is NOT law – it is merely a professional guide to practice. However it can be used as evidence against you in a court of law! Hospital policies and national guidelines such as those advocated by NICE (National Institute for Health and Clinical Excellence) will have the same effect – if you choose to ignore the policies on manual handling and subsequently you were taken to court for poorly handling a patient, the policy will be referred to in court to

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Introduction to Law and Ethics (Iwan Dowie, July 2012) illustrate your deviation from policy and how this might have contributed to your poor practice. Some people refer to professional guidelines and policies as quasi laws. There are three main areas of accountability:-

Professional Accountability Employer Accountability Negligence (Civil/Criminal Accountability)

Professional Accountability

‘You remain accountable for the appropriateness of the delegation.’ For example, asking a Health Care Assistant to do the drugs round would be deemed as inappropriate delegation. A surgeon asking a nurse to perform cardiac surgery without ensuring the nurse is adequately trained would also be deemed inappropriate. ‘You must only undertake practice and accept responsibilities for those activities in which you are competent.’ A health care professional who undertakes a task without the necessary training will be held negligent if the patient suffers harm due to her/his actions. Under most code of conducts there is a responsibility to deliver care according to current evidence and best practice. Performing practice simply because of tradition or ward/clinical culture is not adequate, unless there is a robust rationale to support your actions. Employer Accountability

Accountability to the employer is normally laid out via the contract of employment. There is an implicit assumption that the post holder will carry out the tasks appropriate with their grade, experience, qualifications, and in some cases salary. Failure to honour contractual obligations may lead to disciplinary action and even removal of vicarious liability which is when the trust removes its responsibility for the faults made by other people (including staff).

The final area is negligence – more of which will be discussed below.

Introduction to Negligence: the Duty of Care Activity 3: What do you think is meant by the term ‘a duty of care’? What do you think is involved in this duty and to whom is your duty to?

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

‘A person may be as negligent as they please towards the whole world, if they owe no duty to it.’ (Le Lievre v. Gould, 1893).

Duty of care is the cornerstone of health care practice. It establishes in one sense a contract between the practitioner and the patient. But what does it mean to owe a duty of care? Almost everyone owes a duty of care to somebody else. For example the law would expect you to stop at a traffic light that is showing red because you owe a duty of care to other road users to obey traffic signs and signals, which are in place to ensure the safety of the people using those roads. In healthcare the same principle apply; as soon as you accept the care of a patient or client a duty of care is said to exist.

In order to show that a person has been negligent then the following must be ascertained:   

A duty of care was owed to that person The defendant was in breach of that duty The breach caused reasonable and foreseeable harm There was sufficient proximity – the closer the relationship the more likely a duty of care is owed. Proximity need not be physical.

For example: If you decide to chop off your own leg because you were in pain you would not be held as negligent! – You owe no duty of care to another person so cannot be in breach. However if you

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Introduction to Law and Ethics (Iwan Dowie, July 2012) performed the same procedure on a relative, you owe a duty of care to that person, and will be deemed negligent should adverse reactions occur. Duty of care is best illustrated in the case of Donoghue v. Stevenson [1932].

A friend of Mrs Donoghue bought a bottle of ginger beer and Mrs Donoghue drank some of its contents. A decomposing snail was found in the bottle of ginger beer, and Mrs Donoghue subsequently fell ill. The manufacturer was sued by Mrs Donoghue for negligence as the manufacturer should have foreseen the danger of leaving ginger beer bottles unopened in a warehouse, the consequence of which may lead to the attraction of some unwelcome guests. Mrs Donoghue won her case. Mrs Donoghue could not rely on breach of contract as a remedy as she had not purchased the product herself, therefore no contract could exist between her, the shop owner or the manufacturer. She could only gain redress via the common law of tort.

‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’ – Lord Atkin. As a health care practitioner you should be able to foresee potential events that may occur due to your actions. For example if you decided to ignore a spillage of water on a ward you should be able to foresee that someone could potentially slip and hurt themselves. The law will hold you to be culpable even though you may not have caused the spillage. A nurse who administers a drug that has been wrongly prescribed may also be held culpable as the nurse has a duty to ensure that the drug prescribed is safely administered and that includes checking that the dose is correctly written. Failure to check medical prescriptions especially when it comes to less common drugs can lead to accusations that the practitioner should have foreseen that a lack of appropriate checks may lead to a patient suffering harm.

Who is my ‘neighbour’?

‘Any 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 into question.’ (The Neighbour Principle).

Think! Physiotherapist Wendy has accepted a referral from the doctor of a patient with chronic back pain. Wendy however cannot see the patient for long as she has a mountain of paperwork to wade through, so she gives the patient an advice sheet without undertaking a thorough initial assessment. Has Wendy discharged an appropriate duty of care to the patient? 17


Introduction to Law and Ethics (Iwan Dowie, July 2012)

Professionally Wendy is expected to maintain an appropriate standard of care. In this example Wendy has not undertaken a thorough assessment, and if it can be proved that this fell short of normal practice Wendy may well be deficient in her duty of care toward the patient. Assessment of the patient is vital to establish the medical history of a patient, such as how long he or she has had the back pain, but assessment can also inform the practitioner of other issues. What if the patient is unable to read or if the patient does not speak English as a first language? There is an onus on us as healthcare practitioners to establish these facts. The giving of an advice sheet may not be enough to fulfil your duty of care to the patient.

Standards of Care – Medical Look up the case Bolam v. Friern Barnet HMC [1957] 2 All ER 118; 1 WLR 528. You can find this case via the Lawtel/Westlaw database in Findit (University of Glamorgan databases). The Bolam Test – You will be judged via your colleagues. For example: If you administered an intramuscular injection following sufficient checks and subsequently the patient experienced a severe reaction, if the action taken by yourself was seen as appropriate by other members of the profession you will not be held as negligent. If however you used a dirty needle how would other members of the profession see this action? They would be very unlikely to offer any support for your actions, and should harm be suffered by the patient you will be held as being negligent, either by a court or a professional/employment hearing, for example the GMC/NMC. However in the ruling made in the case of Bolitho, the House of Lords decided in effect that, if the management by a body of responsible doctors (or other healthcare professionals) was not demonstrably reasonable, it would not necessarily constitute a defence. If professional opinion called in support of a defence case was not capable of withstanding logical analysis, then the court would be entitled to hold that the body of opinion was not reasonable or responsible. Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771 771 – Bolitho differed slightly from Bolam in that it examines causation. For example would you be held negligent for harm if your failure to attend to a patient was proved? Here it would depend if your attendance to the patient would have altered the outcome – if the patient would have died or suffered harm despite your attendance it would be difficult (if not nigh impossible) for the plaintiff to succeed in their action. In the case of Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 three night watchmen had been poisoned by arsenic (unknown at the time to the men) and had presented themselves at the local accident and emergency department with profuse vomiting. The nurse called for the duty doctor to see the men but he told her to send them home and for the men to see their GP in the morning. The men subsequently died. However the doctor was held not to be negligent because even if he had attended he would not have been able to prevent their consequent deaths. A lack of Experience cannot be used as a defence! Nettleship v. Weston [1971] 2 QB 691 Mrs Weston a learner driver crashed her car injuring Mr Nettleship, her driving instructor (although not a professional one). He sought compensation from Mrs Weston. The court concluded that Mrs Weston was to be compared to all drivers (the standard of driving) therefore Mr Nettleship won the case! Mrs Weston tried to claim that Mr Nettleship was ‘volenti 18


Introduction to Law and Ethics (Iwan Dowie, July 2012) non fit injuria’ in plain English she claimed that Mr Nettleship willingly accepted the risk when agreeing to instruct Mrs Weston. However the court held that volenti did not apply to this case. In the medical and healthcare professions the same principle applies: If a student nurse or doctor gave a client the wrong injection which caused serious harm to the client, it is only right for the client to expect the same duty of care from that of a qualified nurse or doctor!

Activity 4: What do you think should happen then to this student?

Look up the case of Wilsher v. Essex Area Health Authority CA [1986] 3 All ER 801 HL [1988] 1 All ER 871 CA. Activity 5: How does this case relate to Nettleship v. Weston and the implications that this case has upon nursing/medical students.

Record Keeping Record keeping is an integral part of healthcare practice and there is a legal obligation for us to record good, clear and accurate information about our patients/clients. Failure to do so could lead to action being taken against us either by a professional regulator, or by the employer, and in extreme cases by the patient and/or their representatives in a court of law. There is also a responsibility placed upon us via statute law to keep records safe and secure. The Data Protection Act (1998) has severe penalties for breaches of confidence which may arise due to poorly stored records, or if as a 19


Introduction to Law and Ethics (Iwan Dowie, July 2012) student you leave your handover notes lying around so that other patients and relatives can see. Case law such as Saunders v. Leeds Western HA [1993] and Marriot v. West Midland RHA [1999] (See page 81) both illustrate how poor record keeping led to the practitioner being held negligent for their practice. In contrast the case of McLennan v. Newcastle HA [1992] supported the practitioner against a claim of negligence due to the records that were kept.

The legal perspective on record keeping is therefore simple – if it has not been recorded there is no written evidence of your actions. Patient records are legal documents that can be called upon to provide evidence before a law court or the GMC/NMC/HPC. They can also be used as evidence in disciplinary hearings. Anything that makes reference to a patient can be used as evidence. Under the common law (Donoghue vs. Stevenson [1932]) you have a duty of care to provide clear, factual records. Falsification of records (for example making up the blood pressure of a patient) or poorly written records that could lead to patient safety being compromised might be viewed as potential negligence. It is important to note that patients also have a right to view their own records. The Access to Health Records Act (1990) was passed as a direct result of the case of Gaskin v United Kingdom [1990] 12 EHRR 36 where the European Court of Human Rights held that the UK’s refusal to grant a right of access by a patient to his health records was in breach of article 8 of the European convention. Today the Data Protection Act (1998) is used to access medical records, although the patient often has to pay a small fee for the service, and any records that may cause unnecessary distress to the patient can be withheld.

Activity 6: List 8 of the most common errors in record keeping that could constitute a poor defence in law

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Activity 7: What is deemed as good practice in order to correct an error in a record?

Hopefully you would have come up with errors such as:-

      

omitting times and dates illegibility no signature opinion mixed with fact use of uncommon jargon and abbreviations use of correction fluid, grammatical errors, writing in the wrong notes.

To correct an error it is advisable to cross out the incorrect entry using a single line (like this) and to date and time when the correction was made. Never use correction fluid to correct an error. There is no legal requirement to use a particular colour pen when entering records, but the use of pencil is strongly discouraged due to the lack of permanency. Many records today are entered directly onto a computer. Records which are computerised must be password protected, and you have a legal responsibility to ensure your password is kept secret and not divulged to any other person.

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

Mental Capacity The law presumes all competent adults to be capable of deciding for themselves whether to accept or reject treatment. The case of Schloendorff v New York Society Hospital [1914] established this principle in the early twentieth century. Statute law such as the Mental Capacity Act (2005) reaffirms the right for mentally competent adults to have the autonomy to decide what should or should not be done with their own bodies. The MCA came into force in April and October 2007. The MCA enshrines into statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. The Mental Capacity Act only applies to over 16 year olds, though some sections apply only to people over the age of 18, for example advanced decisions and Deprivation of Liberty Safeguards. There are five key principles: 1. There is a presumption of capacity: it is assumed by law that all adults over the age of consent have the ability to decide for themselves whether to accept or decline treatment being proposed or offered (section 1). 2. All individuals have the right to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot do so. 3. Individuals must retain the right to make what might be seen by others as eccentric or unwise decisions. 4. Best interests (s4) – anything done on behalf of people lacking capacity must be done in THEIR best interests. 5. Least restrictive intervention – anything done for or on behalf of those without capacity should be the least restrictive of their basic rights and freedoms (s1).

The law expects when faced with a patient who may lack mental capacity for the healthcare practitioner to assess the patient to establish capacity or lack of, and if the patient is deemed to have lost capacity then it is legally suitable for the health care practitioner to be able to make a decision on behalf of the patient, as long as it can be seen by others to be in the best interests of the patient. There is an onus placed upon the health care practitioner via the Mental Capacity Act (2005) to continue involving the patient in their care and to regularly assess their mental capacity. Health care practitioners are also obliged to consult with family members, carers or people appointed by the court. However the practitioner is not bound by decisions made by family members, and can continue to treat (or not treat) a patient if the practitioner feels that this would be in the patient’s best interest.

Assessing Mental Capacity A doctor or nurse cannot assume a lack of mental capacity merely because a patient suffers with a mental disorder or learning difficulty. The case of Re C [1994] involved a patient with schizophrenia who did not want his leg amputated despite medical advice that this was necessary. The court held that as he was able to understand the information provided to him, retain the information and weigh up the benefits and the consequences of his actions the patient was able to refuse treatment. The issue of his schizophrenia was not relevant in the circumstances. (This case set a precedent and is referred to as the three stage test for mental capacity). In a similar sense if a patient had mild dementia and was able like Re C to understand the consequences of their actions, then the patient will be allowed to accept or refuse the treatment being offered. Again the issue of the patient having 22


Introduction to Law and Ethics (Iwan Dowie, July 2012) dementia does not automatically preclude them from making a decision. The Mental Capacity Act incorporated the three stage test into the Act with the addition of a fourth stage: that you must be able to communicate your decision to the healthcare professional assessing your capacity.

An Illustrated Summary of the Four Stage Test for Mental Capacity

Understand the information

Communicate your decision

Four Stage Test for Mental Capacity

Retain the information

Weigh up the risks and the benefits

Advanced Decisions Advanced decisions are used by patients to inform health care practitioners what they don’t want to happen to them if they should be in a position where their mental capacity has become compromised. Advanced decisions can be made verbally or they can be written, however the decision must be made whilst the patient still has the capacity to decide. Advanced decisions must be specific and not overly generic and they cannot be used to refuse essential nursing care such as maintaining hygiene needs or being offered food. An advanced decision cannot be used to request illegal acts such as euthanasia. Likewise advanced decisions cannot be used to demand treatment as there is currently no legal right to treatment under UK law, only a right to care. Advanced decisions can only be made by someone who is 18 years and over.

Case study Mabel has mild dementia and decides to make an advanced decision that she does not want to be resuscitated in the event of a cardiac arrest. 23


Introduction to Law and Ethics (Iwan Dowie, July 2012)

Would this be seen as a valid advanced decision? Explain your answer.

It would depend upon how ‘mild’ her dementia was. In Re C we have seen how an existing mental health condition does not automatically preclude you from having the ability to refuse or accept treatment. If Mabel understands the implications of her advanced decision then there is no reason as to why her advanced decision will not be seen as valid. In the case of Re K [1988] 1 Ch 310 the person was becoming mentally incapable but was still able to understand the process behind the establishment of an Enduring Power of Attorney (EPA). This meant that the person was still mentally able to nominate another person to gain the EPA.

Mental Health Act (MHA) - (1983 & 2007) The Mental Health Act (1983) (amended by the Mental Health Act, 2007) provides protection for patients detained in mental health institutions and centres, and provides a legal code of practice for practitioners working in this area of medicine. The MHA is divided into sections, of which many grant specific powers to particular professionals to assist in their duties in looking after people with mental health disorders.

Mental Health disorders are often subject to debate, however the following conditions are recognised as meeting the criteria for a disorder; schizophrenia, anorexia nervosa, major depression, bipolar disorder, learning disability and personality disorders. Having one of these disorders does not constitute an automatic applicability of the MHA upon the patient and other factors are needed to be considered before a patient can be detained/looked after via the MHA. For instance if the patient became incapable of looking after himself/herself as a result of the disorder, or if they become a danger to themselves or others.

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Professionals recognised by the MHA

The MHA lays down certain criteria to enable professionals to carry out functions afforded by the legislation. Medical practitioners recognised under section 12 of the act are usually psychiatrists or General Practitioners who have received specialised training in the application of the Act. Approved Mental Health Professional (AMHP) is heavily involved in the assessment of individuals with a mental health disorder and often the first to organise and facilitate assessments. For example AMHP’s will arrange for a person to be assessed by two medical practitioners one of whom will be a section 12 doctor. For a person to be detained in hospital via the MHA there needs to be at least three people involved one of whom can be the AMHP. An AMHP can be a social worker or a registered nurse with specialised training in mental health. If the two medical practitioners agree that the person can be detained via the MHA the AMHP has 14 days from the date of the second medical assessment to decide if the person is to be detained, and to make the necessary arrangements for transporting the patient to hospital. Approved clinicians (AC’s) are responsible for the patient whilst detained via the MHA and often will be a consultant psychiatrist, although other healthcare professionals can take on this role, such as nurse specialists. An approved clinician who takes over the care of a patient becomes known as the responsible clinician (RC).

Assessment Orders Under section 2 of the MHA an AMHP (or the patient’s nearest relative) can make an application for assessment of a patient. Two doctors (one of which is recognised via section 12) must agree with the AMHP or the Nearest Relative that the patient is to be detained for assessment. The maximum length of duration is 28 days. The assessment order cannot be renewed after 28 days. The patient can be discharged if deemed suitable to do so by the responsible clinician, by hospital managers, or by appeal to the Mental Health Tribunal (MHT) by the patient within the first 14 days of detention. The Nearest Relative can also request discharge but the RC can prevent the discharge via appeal to the hospital managers.

Treatment Orders Under section 3 of the MHA, an AMHP and/or the Nearest Relative can apply for an admission for treatment. Two doctors must be satisfied that; (a) the patient is suffering from a mental disorder of a nature or degree that makes it appropriate for him or her to receive medical treatment in hospital; and 25


Introduction to Law and Ethics (Iwan Dowie, July 2012) (b) appropriate medical treatment is available for him or her; and (c) It is necessary for his or her own health or safety, or for the protection of others that he or she receives such treatment and it cannot be provided unless he or she is detained under this section. The duration of a section 3 detention is for up to 6 months. This can be renewed for a further 6 months and thereafter on an annual basis. Under section 3 a renewal via section 20 can be made if the original criteria still applies, and appropriate medical treatment remains available for the patient’s condition. The RC is required to consult with a person from a different profession who has had contact with the patient. Appropriate medical treatment has a wide scope and can include basic nursing care. Discharge can take place via the RC, hospital managers, or the nearest relative (giving at least 72 hours notice, although the RC can appeal against discharge via the hospital managers – the nearest relative than has up to 28 days to appeal to a MHT). Discharge can also be ordered via the Mental Health Tribunal. The patient can appeal to the MHT once during the first 6 months of detention, once during the second 6 months and thereafter once every year. If a patient does not appeal within the first 6 months the case is automatically referred to the MHT. Emergency admission is executed via section 4. The length of detention is for up to 72 hours. An AMHP or nearest relative can apply. The applicant must have seen the patient within the previous 24 hours before the application is made. One doctor is required to confirm that admission is of urgent necessity to be detained via section 2 and that waiting for the second doctor as required via section 2 would cause an undesirable delay.

Holding Powers Under section 5 (2) a doctor can detain a patient who has given their agreement to an informal admission but then changes their mind and wishes to leave. An assessment of the patient is made by the doctor in charge of the patient and the detention order lasts for 72 hours. A Section 5 (2) order is not renewable. Any medical practitioner has the power to detain via section 5 (2). Under section 5 (4) registered mental health or learning disability nurses have the power to detain informal patients for up to 6 hours before the patient is placed onto another section of the MHA or an assessment is carried out by a doctor. As soon as a doctor sees the patient the section 5 (4) becomes obsolete. A section 5 (4) order is not renewable. Both a section 5 (2) and 5 (4) order allows healthcare staff to use reasonable force to detain a patient. The patient can have either full capacity/partial capacity or no capacity. These orders cannot be used to detain hospital visitors or patients attending outpatients. A section 136 order allows police to remove someone from a public place if they believe they could be a danger to themselves or others. A doctor and an AMHP will need to assess the person. Detention is for up to 72 hours. Section 17 gives the responsible clinician the power to grant a leave of absence. This leave of absence can include escorted or non escorted leave from the hospital premises. Leave of absence can be for a short period or a longer period of up to 12 months. 26


Introduction to Law and Ethics (Iwan Dowie, July 2012)

Criminal Detentions If a person commits an indictable offence of which a prison term would normally be the sentence, the courts (magistrate and crown courts) have the power, prior to trial and sentencing, to remand the patient to a hospital for a medical assessment via section 36 of the MHA. Duration of the remand is for up to 28 days, although this can be renewed for further periods of 28 days to a maximum of 12 weeks in total. If the patient has been sentenced by the court for an offence, the court can via section 37 make a hospital order to detain the patient for treatment for up to 6 months, which can be renewed for a further 6 months and thereafter for one year at a time. A section 37 order is used when the patient could receive a prison sentence for the crime permitted as opposed to a sentence where the mandatory sentence would be custodial. Section 37 orders are therefore not used in cases of murder. For murder cases the defendant can use diminished responsibility as a defence. If medical evidence corroborates this the offence can be substituted for manslaughter (Section 2 of the Homicide Act, 1957). A section 41 order is made if the court after making a section 37 order feels that it needs to protect the public from serious harm. A section 41 order has no imposed time limit. Section 41 orders can only be granted by the crown court. Magistrate courts have no powers to make a section 41 order, and must refer the case to crown court. Under section 41 a person can only be discharged from a section 41 order by the Secretary of State for Justice or by a MHT. A RC can only discharge with the consent of the Secretary of State for Justice. Section 41 orders are reserved for more serious offences. Section 45A orders are used when the sentence of the court is not fixed by law. The person can be transferred immediately to hospital for treatment. If the Secretary of State for Justice deems the person fit for discharge from hospital the person can be transferred back to prison to serve the rest of his sentence. The person has to suffer from a psychopathic disorder and the court has rejected the option of a hospital order. Prisoners requiring mental health treatment can be transferred to hospital via section 47. Section 49 prevents the return to prison unless with permission from the Ministry of Justice. It is important to note that prisoners transferred to hospital via section 47 & 49 can remain in hospital after their initial prison sentence has come to an end. Section 117 Referred to as the ‘aftercare’ section - all patients detained via sections 3, 37, 47 or 48 are entitled to receive support from community practitioners in mental health, support with employment, accommodation and family relationships as well as entitlement to a range of benefits. Aftercare must be provided free of charge. Mental Health Act (2007) Updated the 1983 legislation – for example the AMHP role replaced the Approved Social Worker role, and mental disorders were no longer split into four classifications of mental illness, psychopathic disorder, mental impairment and severe mental impairment. Section 1 now states that a mental disorder is any disorder of or disability of the mind.

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Confidentiality

Patients have a right for their medical records and other information to be kept confidential. Article 8 of the Human Rights Act (Right to Privacy and Dignity) and The Data Protection Act (1998) both protect the right for confidentiality. Common law also places an onus upon healthcare practitioners to uphold the duty of confidence: “it is the doctor’s duty to observe the rule of professional secrecy by refraining to disclose…..information about a patient which he has learned directly or indirectly in his professional capacity” W v Edgell [1990] 1 All ER 835. In the case of Ashworth Hospital vs. MGN Ltd [2002] 1 WLR 2033 - the Mirror newspaper published information provided to them by an employee of Ashworth hospital detailing the treatment of Ian Brady who was convicted of abducting, and killing children during the 1960’s (The Moors Murders). The hospital took the paper to court with a demand that the employee’s details were disclosed. The court held that the employee could be named, as patient confidentiality is an essential duty of any person working in a healthcare setting which in this case had been clearly breached.

Under the Department of Health (2003) Confidentiality: NHS Code of Practice a duty of confidence arises when one person discloses information to another in circumstances where it is reasonable to expect that the information will be held in confidence. The Code of Practice reiterates to practitioners that confidentiality is a legal obligation, a requirement established in professional codes of conduct, and a clause relating to confidentiality must be included in employment contracts, thereby establishing a legal contract between the employer and the employee. However in some cases confidentiality can be breached if the practitioner feels that there is a public interest in disclosing/sharing the information or if the practitioner reasonably suspects that the patient is likely to harm themselves or others. (W v Edgell – in this case a paranoid schizophrenic tried through the courts to suppress a report written by Dr Edgell detailing W’s case. The courts however felt that it was in the wider public interest for the report to be disclosed to relevant people, despite W’s objections). Therefore there is no absolute right to confidentiality under UK legislation, although you can as a patient reasonably expect for personal information held about yourself to be kept in a safe and secure environment and disclosure of your information should only be made if the need arises. Doctors or nurses who gossip in the canteen with the revelation of patient diagnosis will be deemed to be in breach of confidence and the law will probably take a dim view of such a breach.

Activity 8: Think of other ways in which health care professionals can breach a confidence?

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Your answer should include irrelevant gossip, telling a relative about a patient’s details without first gaining consent from the patient, leaving medical or nursing notes lying about in places that other staff or patients could find, and talking to colleagues and friends about a well known celebrity you’ve looked after that day.

-------------------------------------------------------------------------------------------Law Relating to Reproduction

There is no absolute right to procreate. The reasons for this are manifold: in order to create a life a person needs to find another to facilitate the beginning of a life (unless you are able to be artificially inseminated, and even here there is no guarantee that you will become pregnant or that the treatment will be suitable for your needs). The Human Rights Act (1998) allows under article 12 for the right to start a family - however this is a limited right, and works on the principle that the state cannot unreasonably interfere with the right to start a family simply because the two prospective parents are from a particular demographic area or that the persons involved have a mild learning difficulty. Human life is not recognised legally from conception. Religious views will often differ from the legal view, and from an ethical stance many people believe it is wrong for a woman to have an abortion as essentially a life is being destroyed. The law takes a more objective viewpoint and via the Abortion Act (1967) the woman has a right to an abortion up to 24 weeks. (The Human Fertilisation and Embryology Act, 1990 (section 37) amended the Abortion Act to reduce the time from 28 weeks to 24). After 24 weeks an abortion is illegal, although paradoxically the foetus still has no legal rights. Technically the Abortion Act does not make abortions legal but provides a defence to practitioners when carrying out the task of abortion if they can justify the need for an abortion on certain prescribed terms; for example if the pregnancy poses a risk to the physical or mental wellbeing of the woman, or if the woman’s actual or reasonably foreseeable future environment will be adversely affected by having a child, or if there is a substantial risk that the child would suffer ‘such physical or mental abnormalities as to be seriously handicapped.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) The abortion must be agreed by two registered medical practitioners and must be carried out by a doctor at a government approved hospital or clinic. This ensures less risk of abortions taking place in back street alleyways or in the woman’s home where there would be an increased risk of harm to the woman. Prior to the Abortion Act, abortion was a criminal offence and the woman and the person responsible for the abortion could face criminal charges via the Offences Against The Person Act (1861). Historically many women were sentenced to death or transportation for having an abortion. Abortions today remain illegal in Northern Ireland and Ireland. Section 4 of the Abortion Act (1967) allows health care workers to object in moral grounds to participating in any treatment relating to an abortion. However section 4 reaffirms that if necessary to save a life or prevent a grave injury, all professionals irrespective of moral stance continue to have a duty of care toward the patient.

Case study Mrs Janaway was a secretary at a health centre. She was asked by a doctor to type a letter to refer a patient to a consultant for advice on a possible abortion. Mrs Janaway was a practicing Roman Catholic and had a moral objection to the performance of an abortion. Mrs Janaway refused to type the letter. She was dismissed from her post. Under section 4 of the abortion act was she right to refuse the typing of the letter?

In this case (Janaway vs. Salford A.H.A [1988] AC 537) Mrs Janaway was not involved directly with the ‘treatment’ and was not involved with any pre or post counselling. The court held that she could not rely on section 4 as she was merely being asked by her employers to carry out duties that were associated with her job and had no direct involvement with the abortion itself. Fathers have no legal right to prevent an abortion and this was confirmed via the European Court of Human Rights in the case of Paton vs. United Kingdom [1980] 3 EHRR 408. This raises some ethical issues in regard to the rights of fathers but the law takes the view it is the woman who has to endure 40 weeks of pregnancy and is often responsible for the subsequent care of the child, so it is only logical that the woman has the right to decide for herself whether she wishes to keep the child or whether to have the foetus aborted. (It is worth noting at this stage that the mother does not have 30


Introduction to Law and Ethics (Iwan Dowie, July 2012) an automatic right to having her baby adopted. Biological fathers if named via the birth certificate and/or being married to the mother at the time of birth, or in possession of a parental responsibility order can decline to give consent for the adoption to take place).

Foetal Rights and Legal Recognition of Life The law provides no legal rights to the foetus except via the Congenital Disabilities Act (1976). This act allows the child to sue for compensation for harm suffered as a foetus with the exception of the mother. For example if the obstetrician or the midwife undertook a practice which negligently caused harm to the foetus, the child (and/or their legal guardians) can sue the practitioners or the hospital to compensate for the harm caused. The mother can only be sued by the child if the mother was driving a vehicle recklessly which subsequently caused harm to the foetus. The child cannot sue the mother for taking drugs and alcohol as it is difficult to establish the intent of the mother. However if a person (including the mother) were to show intent to attempt or destroy the life of a child whom is capable of being born alive than that person will be committing a criminal offence via the Infant Life Preservation Act (1929).

The law states that only when a child is born and is able to survive independently of its mother does it gain legal recognition as a person (Rance v Mid-Downs Health Authority [1991] 1 QB 587). Independently means in these circumstances that it can breathe on its own without the need for the umbilical cord to remain attached. Still births are not afforded legal recognition; however their status needs to be recorded on a stills births register. According to the Still-Birth (Definition) Act (1992) still births occur if the foetus dies after 24 weeks of pregnancy, otherwise the foetus is classified as a miscarriage and the law does not require registration of miscarriages.

Parental Screening & Genetic Counselling

This is becoming increasingly popular in the United Kingdom. Amniocentesis is one of the most common techniques for diagnosing various conditions a foetus might have. It is now possible to screen for a range of conditions such as cystic fibrosis, Down’s syndrome and Duchenne muscular dystrophy. Some people worry that screening could be extended to detect genes associated with homosexuality or certain types of cancers. This potentially could lead to accusations that society in general is beginning to play the role of God, and through screening we are helping to create a world of ‘perfect’ specimens. The accountability afforded to doctors/midwives/nurses in this expanding area has increased over the years and there is a danger that poor genetic counselling can result in claims being made against the practitioner. In the case of Anderson vs. Forth Valley Health Board [1988] 44 BMLR 108, a couple sought damages in respect of alleged negligence as the hospital was aware of a history of Xlinked Duchenne Muscular Dystrophy among the male members of the wife’s family. The hospital did not offer any genetic counselling or tests, so the court awarded damages to the couple. 31


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Human Fertility

The Human Fertilisation and Embryology Act (1990) established the Human Fertilisation and Embryology Authority (HFEA) which regulates infertility clinics and the storage of gametes. The HFEA also produces strict guidelines on subjects such as gender selection. the Human Fertilisation and Embryology Act (2008) extends the 1990 legislation by recognising the right of same sex couples as legal parents of a child conceived via donated sperm, eggs or embryos. The 2008 act also allows for human embryos to be used for research purposes. Note: The UK Coalition Government announced in 2010 that the Human Fertilisation and Embryology Authority will be abolished in the next four to five years; although it is still unclear what bodies will incorporate HFEA functions. There is no right for a person to demand infertility treatment and this was confirmed in the case of R v. Sheffield HA ex parte Seale [1994] 25 BMLR, when a woman was refused IVF due to her being 37. The court held that the Health Authority’s policy to include an age limit was not unreasonable due to its limited resources. The Diane Blood case (R v. Human Fertilisation and Embryology Authority ex parte Blood [1997] 2 WLR 806) illustrated the complexities of UK infertility laws when she sought approval to be able to use her dead husband’s sperm. She was refused by the HFEA due to her husband not being able to give his consent, and the court of appeal upheld the decision made by the HFEA. However Diane Blood was able to seek treatment abroad and she went to Belgium. She faced a further fight in the British courts to have her deceased husband legally recognised as the father on the birth certificate. Diane Blood won her fight and as a result of the case the Government passed the Human Fertilisation (Deceased Fathers) Act 2003. The act specifies the circumstances in which a deceased father can be legally recorded on the birth certificate.

Controlling Fertility

The case of Thake vs. Maurice [1986] QB 644 places an obligation to the practitioner to tell patients and clients that treatments to provide fertility or to control fertility are never absolute. Mr Thake went for a vasectomy and the consultant informed him that it was irreversible. The consultant failed 32


Introduction to Law and Ethics (Iwan Dowie, July 2012) to warn Mr Thake that there was a small chance that he could become fertile again. Not long after Mrs Thake became pregnant. The court held that the consultant had breached his duty of care to Mr Thake by not warning him of the small risk and that there was also a breach of contract between the consultant and Mr Thake. --------------------------------------------------------------------------------------------------------------------------------------

Brief Overview of Legal Consent (Patients with Capacity)

Consent can be sought in a variety of ways: firstly consent can be provided orally (i.e. you ask if someone agrees to a procedure and they reply with a yes or a no). Consent can also be implied – (the patient/client will nod/shake their head to indicate a yes or no or they will roll up their sleeve for an injection). The best form of consent is written consent – here the patient signs a form, the signature providing a greater weight of evidence towards agreement of the procedure. Implied consent is generally perceived to be the weakest form of consent, as an implied agreement can be easily misinterpreted. Consent must be informed. In case law healthcare practitioners are under a duty to explain the proposed procedure and the possible implications (Chatterton v Gerson, [1981]). The law expects information to be explained in broad and sufficient terms. The law however does not expect all information to be disclosed. In the case of Sidaway v Bethlem Royal Hospital [1985] Amy Sidaway was not informed of a 1% chance of spinal cord damage associated with the operation. The House of Lords stated that there was no obligation for a doctor to disclose an insignificant risk. The issue of therapeutic privilege applies to this case – if a doctor (or any other healthcare professional) believes that the disclosure of insignificant risks could psychologically affect the patient’s decision, they can withhold information from the patient. However the ruling of Sidaway has undergone challenge in recent years – in the case of Chester v Afshar [2004] Miss Chester had a 1 – 2% chance of cauda equina syndrome (a neurologic condition). She sued the surgeon for not disclosing this risk, and due to the lack of supporting documentation to suggest he had indeed informed her of the risk, the court accepted Miss Chester’s claim. Paradoxically Miss Chester said she might still have had the surgery despite the risk; however she may have applied more consideration in making her decision. Lord Hoffman however suggests the ruling in Chester lacks sense and uses the following argument that it “was about as logical as saying that if one had been told, on entering a casino that the odds on No. 7 coming up at roulette were only 1 in 37, one would have gone away and come back next week or gone to a different casino”.

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Part 2 - Introduction to Ethics

What is Ethics?

Ethics is about what is ‘right’ and ‘wrong’, ‘good’ and ‘bad’ in human actions....judgements and actions will often have a ‘moral’ dimension....Ethics tends to refer to the science or study of morals (Hendrick, 2010 pages 9 & 10). In other words why do some members of society view certain actions as ‘moral’ or ‘immoral’. Ethics will examine the reasons why, thus ethics tends to be more abstract than law, and often will allow differing and legitamate views to be debated and discussed, with neither viewpint being ‘right’ or ‘wrong’.

Three Ethical Divisions Descriptive Normative Meta – Ethics Descriptive Ethics - concerned with the moral views people actually have. Example: What nurses think about abortion? Normative Ethics – Concerned with ethical theories as to how to resolve moral dilemmas. Meta-ethics – is concerned with the meaning of moral terms. Example: if we say that justice is important what does this actually mean?

Questions

 Should Euthanasia become legal?  Patients over the age of 75 should not have surgery. The money saved will help all those poor sick babies! What do you think?

 People who smoke should pay for their health care! Is this right?  The NHS should be disbanded! It is not morally right for wealthy people to expect free NHS treatment! What do you think? Justify your views? Ethics can…… Be very subjective, controversial & unpopular!

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

During the Second World War, Nazi Germany eventually recognised the killing of Jews by shooting as ‘morally wrong’! The shooting of Jews at point blank range was too ‘distressing’ for the German soldier! So they used gas instead! It was deemed a more ‘humane’ method of killing – not for the Jew but for the German soldier! (Heinrich Himmler, 1941). Indeed many racial theories were born from ethical viewpoints - in particular the concept of eugenics, which believed the purity of the human race, was best served by discouraging reproduction by ‘undesirable’ elements such as the genetically disabled or somebody of a very low social class. Because of the Horrors of World War 2, ethics was examined more closely as a subject, and controversial theories such as eugenics were discredited. Government and subsidiary organisations now follow a strict code of ethical principles, rules and morals, for example when undertaking a research study you have to have approval via an ethics committee. This helps to ensure that human beings are not in the future subjected to inhumane and degrading experiments. The NHS (in principle) should follow strict ethical principles and rules.

Ethics in Clinical Practice Ethics is not:  Law – Laws are not always ethical, for example Apartheid, Nuremburg Racial Laws (1936).  Obeying orders – Saddam Hussein issued orders but are not viewed by most of the world community as ethical  Gut response – instinctive It is:   

The need for reasoned argument Being able to justify all the decisions we make. Himmler, for example could ‘justify’ his decision!

Ethical Rules, Principles & Theories Rules Confidentiality – keeping a confidence in health care is essential to protect patient autonomy and dignity. Patients expect their medical records to be kept secure, and the onus is placed upon the practitioner to ensure steps are taken to minimise potential breaches of confidence. However there are times when confidence may need to be disclosed from an ethical (as well as legal) duty. Case Study: A patient tells you that they wish to go home to commit suicide but the patient asks you not to tell anyone. What would you do?

In circumstances such as this it would be expected for you to disclose (share) this information with other health professionals and possibly the police for the protection of the patient. 35


Introduction to Law and Ethics (Iwan Dowie, July 2012)

Veracity – There is an assumption in healthcare for practitioners to keep to the points below unless there is a very good reason for not doing so.

Veracity encompasses:  Truth telling  Not lying  Not deceiving  Obligation to supply information requested.  Informed consent Fidelity – Keeping promises – Infidelity is a breach of a promise made to a spouse or a partner. Privacy Respecting personal space of an individual Not performing tasks of a personal nature without consent. Activity 9: Summarise why the above are important for patients?

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Activity 10: Why is upholding a patient’s dignity so important?

Ethical Principles – Autonomy Melia (1989) views autonomy as the ‘freedom to act as we choose’, a capacity for self government. There should be no interference with this right except for a very good reason (for instance to protect another person from harm, or for a societal reason).

Activity 11: What is meant by informed consent?

Supporters of autonomy argue that the only person who can give consent is the patient himself and the responsibility rests with him alone. Informed consent is viewed as a major cornerstone of autonomy in healthcare practice, in so far that we as healthcare practitioners provide a 37


Introduction to Law and Ethics (Iwan Dowie, July 2012) patient/client with the facts but allow the patient to decide whether or not to have the treatment and to respect their decision.

Activity 12: Think about the statement above. Do you agree?

What about people who cannot give consent?

For example, the unconscious, people with intellectual disabilities, and/or mental health illnesses. Children under a certain age may also be unable to give a valid consent.

Activity 13: Who would make the decision and why?

Capacity to consent Activity 14: Look up the case of Re C [1994] 1 WLR 290. What is the three stage test to determine mental capacity? Explain how the three stage test has altered with the passing of the Mental Capacity Act (2005)

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Principles – Beneficence ‘The nature of many medical decisions is complex. When added to the stresses and pain of illness, the complexity often taxes adults, let alone children, to the extent paternalistic decisions must be made to protect them from the harmful consequences of their choices’. Chadwick & Tadd (1992) Beneficence stands for what is good and in the best interests of the patient. For example, telling a patient of all the lifestyle difficulties (such as a loss of hair) when undergoing chemotherapy, allows the patient to make a fully informed choice. However, there is a risk that the patient may then refuse the treatment. If the health care professional omits some information the patient may be more likely to have the chemotherapy. In this case the practitioner is acting beneficently in so far that the practitioner feels that the chemotherapy is the best method of treatment for the patient and by omitting some information will increase the likelihood of the patient undergoing chemotherapy to help her with her fight against cancer.

Activity 15: What would you do and why?

Remember

As a health professional you control the information that is given! 39


Introduction to Law and Ethics (Iwan Dowie, July 2012)

Most patients will probably accept the advice provided by the healthcare professional.

Principles – Non-Maleficence To act non-maleficently is to do no harm – there is a presumption placed upon doctors and nurses (as well as other healthcare professionals) to ensure that our practice does not cause un-necessary harm to the patient. Both Non-Maleficence and beneficence to some extent conflict with autonomy! For example: A man wants to jump from the aeroplane without a parachute. You tell him to put one on – You are now conflicting with his right to choose! Whilst this might be a silly example there are times when as health care practitioners we are faced with dilemmas that we might not fully understand or appreciate – a person refuses a blood transfusion due to their religious beliefs. Without this blood transfusion the patient will die. If the person is an adult and of sound mind they are entitled to make that decision, even though the patient will potentially suffer. What we might feel to be in the best interests of the patient could be seen by the patient as interference. To do no harm must also apply to the spiritual and psychological condition of the patient, and to provide a blood transfusion against the patients wishes could cause more harm in the long term.

Principle of Double Effect When the intended effect is beneficent but inadvertent side effects may cause harm.

Activity 16: Can you think of any examples when this may occur?

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

We often give our patients medications that can cause some unpleasant side effects, although in the long term the benefit of these medications outweigh the risks associated with them. This is what is meant by ‘double effect’.

Acts and Omissions Doctrine Many people would state that it is less bad, morally speaking, to bring about harm by an omission rather than by a positive act. If you stabbed someone (for no reason) you are undertaking a positive action to cause harm to that person. The law will view this as intent to harm. If however you merely walked passed a person who had been stabbed this will be viewed as less bad than the actions of the person who initially caused the crime. However ethically and legally, it might be seen that you should have done something to help that person.

In medical practice by failing to provide the patient with appropriate medications or ignoring a patient who has soiled the bed will be viewed as unacceptable by the profession, and legally you may be held to be negligent if harm was suffered by the patient. In Medicine and Nursing omissions are often seen as serious as a positive act if harm is the result.

Ethical Theories  Rights  Utilitarianism  Duty - Deontology Rights

Activity 17: What is meant by rights, & why are rights important to us in society?

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

The Oxford English Dictionary (2010) defines rights as: “That which is correct or just; fair treatment, a legal or moral entitlement; authority to act”

Rights can be placed into two categories: Positive & Negative Rights (Chadwick & Tadd, 1992 – Page 130). Positive Rights For example: If A claims a right to healthcare or education then he is claiming a positive right as an obligation is placed on others to provide a service. For this reason positive rights are also referred to as welfare rights. However in order to ensure A’s right, the right to healthcare demands that B & C become nurses. As B & C also have rights to embark on a career of their own choosing, it is difficult to see how A’s claim can be secured if no-one is prepared to enter the nursing profession.

Negative Rights Negative rights are often referred to as liberty option rights as the only obligation on others is to refrain from interfering when the right holder exercises his claim, for example the right to free speech, (Though laws do exist to curtail some of this right). The US constitution is an example of a negative right and many US citizens will use the constitution as a defence for their actions.

The Concepts of Rights in the Twentieth Century Two World Wars illustrated how easy it was to disrespect human rights. The first half of the twentieth century was also an age of empires. Human rights were often accorded to class, race and status. In Germany, the Nazis first came for the communists, and I did not speak up, because I was not a Communist. Then they came for the Jews, and I did not speak up, because I was not a Jew. Then they came for the trade unionists, and I did not speak up, because I was not a trade unionist. Then they came for the Catholics, and I did not speak up, because I was not a Catholic. Then they came for me... and by that time, there was no one to speak up for anyone.

Martin Niemoeller, Pastor, German Evangelical (Lutheran) Church There was no credible international sanction to prevent or attempt to stop human right abuses. 42


Introduction to Law and Ethics (Iwan Dowie, July 2012)

Because of the horrors of World War two, the United Nations was established, and in 1957 the European Economic Community was established via the Treaty of Rome. The European Convention on Human Rights was established in 1950 (which came into force in 1953), and led to a Court of Human Rights which came into effect in 1959.

The Human Rights Act 1998 (HRA, 1998) The Human Rights Act (1998) came into force on the 2nd October 2000 and incorporated most of the European Convention on Human Rights. EFFECTS:

  

It is unlawful for a public authority to breach the rights set out in the convention. An allegation of a breach of the rights can be brought in the courts of this country. Judges can make a declaration that legislation which is raised in a case before them is in breach of the Convention and the legislation will then be referred back to parliament for reconsideration.

The HRA also applies to the courts as the courts are part of the public system. This does mean that the courts are bound to make judgements in keeping with the convention; the result of which that even in private cases the Human Rights Act will have some effect, although in comparison to public bodies its scope is much more limited.

The Articles (HRA, 1998) 2. Right to life. 3. Prohibition of torture or to inhuman or degrading treatment or punishment. 4. Prohibition of slavery and forced labour. 5. The right to liberty and security. 6. Right to a fair trial. 7. No punishment without law 8. Right to respect for private and family life. 9. Right to freedom of thought, conscience and religion. 10. Right to freedom of expression. 11. Right to freedom of assembly and association. 12. Right to marry and found a family. 14. Prohibition of discrimination. 16. Restriction of political activity of aliens. 17. Prohibition of abuse of rights. 18. Limitations on the use of restrictions on rights.

The Human Rights Act (1998) is made up of absolute rights and qualified/limited rights. Most rights are qualified /limited rights - in other words there is no absolute guarantee that the right can be 43


Introduction to Law and Ethics (Iwan Dowie, July 2012) upheld if say for example by upholding a right would deprive someone else of their rights. Article 3 is an absolute right - no-one is to be subjected to inhumane or degrading treatment and torture, and the state has a responsibility to ensure that this is maintained.

Case Study William is a member of the Rutland for Independence Campaign Group (RICG). This group is a terrorist organisation, and recently they have threatened to ‘blow up Birmingham’ with a dirty bomb containing nuclear materials. William has been captured by the secret service.

Can the state torture William to seek information about the other members of the RICG?

Your answer should state that there is no allowance for torture within the HRA or the European Convention for Human Rights. William therefore cannot be tortured to obtain information. Here the law has taken a deontological view in that the rights of the individual under article 3 are paramount. However a utilitarian view may be critical of this approach as the torture of one person could lead to saving of many lives.

Rights and Health Care The NHS was set up in 1948 by the Clement Atlee (1883 – 1967) Labour government. Aneurin Bevan (1897 – 1960) the health minister is credited with its formation.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Its guiding principle is all people are to be treated equally, and have the same rights to healthcare as any other person. The NHS was designed to be free of charge at the point of delivery to all, regardless of wealth, or status. This bedded in well with the Marxist socialist leanings of Bevan, however within a few years of conception the NHS began to charge for some of its services. Nevertheless the NHS today remains in general true to the visions of Bevan and Beveridge. (William Beveridge was the author of the wartime Beveridge report which led to the foundation of the NHS) Activity 18: As health care professionals we do not treat according to status, wealth or personality, but prioritise according to clinical necessity. Do you agree with this statement?

Some people argue that the NHS is a national service and not an individual service, and in the UK there is no statutory ‘right’ to healthcare (www.reform.co.uk, 2004). Recent Heceptin cases are a prime example of people stating a right to a drug, when no legal right actually exists. (Although an ethical right may exist).

So is there Such a Thing as Rights? Britain has an unwritten constitution, which technically means there is no single legal document which exists to protect our rights. However various legislation exists which provides us with ‘rights’ – for example: the Human Rights Act (1998). However the Human Rights Act can conflict with other legislation and rights! Therefore you cannot necessarily rely upon the HRA to protect your rights. The Human Rights Act for example only applies to public bodies, such as the NHS or the police. If someone refuses to serve you in Tesco, as Tesco is a private organisation you could not use the Human Rights Act to form a case. Other legislation that will uphold ‘rights’ includes the Data Protection Act (1998), which allows you as an individual to access personal data held by organisations etc. You also have a right to expect an organisation to keep information held about you as confidential, and only to be disclosed to others if necessary for your well-being or being imposed to do so for legal requirements. The courts may also protect rights, but will have to consider the impact upholding these rights will have upon other individuals/groups/organisations. For example the right to free speech if it were an absolute right would allow someone to voice racist 45


Introduction to Law and Ethics (Iwan Dowie, July 2012) & sexist opinions. An absolute right to healthcare could open up the floodgates and allow people the right to all available treatments, irrespective of cost. Unlike the UK, the USA has a written constitution (1787) – ‘Rights’ enshrined by law – many Americans possess guns because of the second amendment of the US constitution which states a right to keep and bear arms. Yet Black people were treated as second class citizens by law (especially in the southern states) until 1954! - Brown v Board of Education of Topeka [1954] 347 US 483. Written Constitutions therefore do not protect rights! Recent upheavals (2009 & 2010) in Iran have shown how ‘rights’ can be ignored, despite constitutional guarantees. Scenarios – Human Rights Act Article 2 (1) – The Right to Life A baby boy, who was severely disabled, was admitted into hospital following a period of illness. The boy has a poor long term prognosis. The doctor decides to make him Not for Resuscitation (NFR) despite opposition from the boy’s mother. The mother decides to take the hospital to court claiming that they are denying her boy the right to life (Article 2 (1) HRA). You are the judge what will you decide and why? __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ Article 3: Right not to be subjected to inhuman or degrading treatment – Scenario 1 Ahmed is an asylum seeker. He is now homeless due to an argument with his landlord. He goes to the Home Office and they provide him with a list of charities that can help him. Despite this Ahmed is still sleeping rough. A lawyer for the homeless says that he can sue the Home Office under Article 3 of the HRA, as they have a duty of care to find accommodation for him. You are the judge – what will you decide and give reasons for your answer? __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ Article 3: Scenario 2. A bed bound patient wants to go to the toilet – She does not like the hoist as she thinks it is degrading and humiliating and contrary to article 3. You tell her that the hoist is the only way to lift her onto the commode. She subsequently soils the bed, and takes action against the trust claiming breach of article 3 of the HRA. You are the judge – what will you decide? __________________________________________________________________________________ __________________________________________________________________________________ 46


Introduction to Law and Ethics (Iwan Dowie, July 2012) __________________________________________________________________________________ __________________________________________________________________________________

Right to respect for private and family life, home and correspondence (Article 8, HRA) Mary decided to have an abortion but has not told Steve her husband. Steve finds out and claims Mary has breached his right to a family life. You are the judge – what will you decide and why? __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________

Utilitarianism This theory of ethics was first advocated by Jeremy Bentham (1748 – 1832). Utilitarianists will state that the right action is what will produce the greatest happiness of the greater number (John Stuart Mill, 1806 - 1873). However utilitarianism may not take into account individual unhappiness! For example, a lady with MRSA (Methycillin Resistant Staphylococcus Aureus) in her wounds is isolated from the main ward. The lady becomes deeply unhappy in being isolated. The action of isolating her is detrimental to her psychological, (and possibly) her physical health, yet it could be suggested that it is for the greater good of the other patients as they are less risk of contracting MRSA. Activity 19: What do you think and why?

Sometimes utilitarianism is referred to as consequentialism. Here the practitioner examines the potential consequences of the proposed action and as long as the consequences are ultimately good then the means at arriving at that point is academic. For example a nurse is faced with two choices. The nurse will need to examine each of those choices and to try and foresee the potential consequences. The one which has the best outcome is the one that needs to be chosen. In the MRSA example isolating the patient may be the best outcome as less people will now have contact with the organism.

However there are problems if trying to solve ethical dilemmas via a utilitarian approach. For example it is not always possible or easy to predict outcomes (or consequences), and often an 47


Introduction to Law and Ethics (Iwan Dowie, July 2012) individual is sacrificed to produce the greatest happiness of the greater number. Society as well can be radically different in accordance with social class, or religious beliefs. Take for example a murderer who is sentenced to death. Society as a whole may take some pleasure in seeing justice being delivered. However what about the person under sentence, what about his family? What if he was found after execution of sentence to be innocent?

Deontology Encompasses duty to the person, for example it is the nurse’s/doctor’s duty to act honestly with a patient, even though honesty may cause the patient potential distress. Immanuel Kant (1724 – 1804) a German (Prussian) philosopher postulated that every person must be treated as an end in him – [or herself], rather than a means to an end. In other words a person has the right to be provided with information relating to them as a person, and they have the right to be able to make a decision on their own behalf, regardless or not if the decision goes against medical advice. However critics of deontology suggest it is too rigid. For example being honest with a patient might be seen as the nurses’ or doctors’ duty, however the consequences of being honest may do more harm to the patient than good!

Activity 20: Can you think of any examples when this might be the case?

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

Most practitioners will probably use both utilitarian and deontological approaches in helping in their decision making. Even Utilitarianists and deontologists will accept that there are times they need to borrow from each other when it comes to deciding a particular course of action.

Ethical Decision Making

Often practitioners have to make many ethical and legal decisions. Seedhouse (1988) came up with an ethical grid to help practitioners to make a decision based on an ethical rationale.

Using the grid above discuss the following case study:

Jack is a ten year old boy with cerebral palsy. His parents and his speech and language therapist have very different opinions on how his therapy should be delivered, as does Jack himself. Can an ethical perspective help them come to an agreement?

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Use the Seedhouse ethical grid to help you consider the potential actions from an ethical perspective.

Citing Case Law In your assignments you will be expected to reference legal cases, just as you would reference articles you have used from the nursing press. Legal citations differ slightly from the Harvard system; take a look at some of the examples below;     

Prince Albert v Strange (1849) – this case was one of the first cases to examine confidentiality! Sidaway v Board of Governors of Bethlem Royal and Maudsley Hospital [1985] 2 WLR 480 F v West Berkshire Health Authority [1989] 2 All ER 545, 554 HL Re B [1987] 2 All ER 206 Hepworth v Kerr [1995] 6 Med LR

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Introduction to Law and Ethics (Iwan Dowie, July 2012) As you may have noticed there are many abbreviations included within the reference. For example All ER stands for All England Law Reports. Try and see if you can find out the full titles of the other abbreviations listed above. ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

End of part 1 & 2.

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

References (Part 1 & 2)

Barker D & Padfield C (1996) Law (9th Edition), Butterworth-Heinemann, Oxford.

Chadwick R & Tadd Win (1992) Ethics & Nursing Practice, MacMillan, Basingstoke.

Davies M (1998) Textbook on Medical Law (2nd Edition) Oxford University Press, Oxford.

Davies H (2007) Human Rights Law Oxford University Press, Oxford.

Dimond B (2008) Legal Aspects of Nursing (5th Edition), Pearson, Harlow, Essex.

Hendrick J (2010) Law & Ethics in Children’s Nursing Wiley-Blackwell, Chichester.

Herring J (2006) Medical Law and Ethics Oxford University Press, Oxford.

Jackson E (2006) Medical Law Oxford University Press, Oxford.

Jones M & Morris A (2005) Statutes on Medical Law (4th Edition) Oxford University Press, Oxford.

Melia K (1989) Everyday Nursing Ethics, MacMillan, London.

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The following pages include recent or upcoming legislation that will be necessary for the health professional to have an awareness of. Please read, although please note some sections will have been discussed earlier within this resource book, and some areas may have been expanded upon or adapted to link with the legislation described.

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Deprivation of Liberty Safeguards (Mental Capacity Act, 2005)

Introduction This section aims to provide the practitioner with an overview of DOLS and its application to practice. However supplementary reading is recommended to gain a more thorough understanding of the process. Deprivation of Liberty Safeguards (DOLS) was introduced as part of the Mental Capacity Act (2005) in April 2009. DOLS was deemed necessary by the government following a legal ruling of the European Court of Human Rights (ECtHR) - HL v United Kingdom [2004]. This ruling and its preceding history is commonly referred to as the ‘Bournewood Case’. Prior to DOLS, detention or deprivation usually occurred as part of the Mental Health Act - MHA (1983) or in cases where the MHA did not apply, via the doctrine of best interest. Following the judgement of the ECtHR, the government has amended (via the Mental Health Act, 2007) the Mental Capacity Act (2005) to include DOLS, hence ensuring that patients/clients receive legally defined safeguards should there be a need by health/social care professionals to consider depriving a person of their liberty.

Background to the ‘Bournewood Case’

As with most significant case law, the Bournewood Case has a long and chequered history. The case first came to light in 1997. A man referred to as HL had autism, and following a GP visit HL was admitted to the Bournewood hospital. It was agreed that he lacked capacity to make decisions for himself, and HL was detained via the common law of necessity. HL’s carers claimed that he was being unlawfully detained, and that his care could be easily given in a community setting. The High Court found in favour of the hospital, however the Court of Appeal overturned the High Court’s judgements, stating that the informal admission into hospital was ‘unlawful’, despite HL’s inability to consent for himself. The case eventually went to the House of Lords, and their judgement found in favour of the hospital. This set a precedent ruling, that people with autism, or learning difficulties could be detained without the need to section under the Mental Health Act. However a Health Service Ombudsman report in 2002 stated that the hospital should not have detained HL, and a ruling made by the ECtHR backed this view, citing a breach of Article 5 (right to liberty) of the European Convention of Human Rights.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Mental Capacity Act (2005)

DOLS is now a part of this statute; hence there is a need to give a brief overview of the general principles which form a part of the Act. The MCA came into force in April and October 2007. The MCA enshrines into statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. The Mental Capacity Act only applies to over 16 year olds, though some sections apply only to people over the age of 18, for example advanced decisions and the new DOLS. There are five key principles: 1. There is a presumption of capacity: as stated in the case of Schloendorff v New York Hospitals [1914] it is assumed by law that all adults over the age of consent have the ability to decide for themselves whether to accept or decline treatment being proposed or offered (s1). This principle equally applies to DOLS, in that all persons are presumed to have a right of liberty and freedom. 2. All individuals have the right to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot do so. 3. Individuals must retain the right to make what might be seen by others as eccentric or unwise decisions. 4. Best interests (s4) – anything done on behalf of people lacking capacity must be done in THEIR best interests. 5. Least restrictive intervention – anything done for or on behalf of those without capacity should be the least restrictive of their basic rights and freedoms (s1). Deprivation of liberty as a part of the MCA can include:-

 

 

Staff making all the decisions on behalf of someone, instead of ascertaining which decisions can still be made by the client. DOL also applies to preventing a person from leaving without a justifiable reason (and if there is a justifiable reason then this needs to be confirmed via a DOLS assessment). Not allowing a person to see their friends or family. Not allowing carers to take someone home.

DOLS in relation to the Human Rights Act (1998)

DOLS has a direct link with this particular area of legislation, and the European Convention on Human Rights was cited as evidence in the Bournewood case. The Human Rights Act came into force on the 2nd October 2000, and incorporated into British law the European Convention on Human Rights. Currently the HRA makes it unlawful for a public authority to breach the rights set out in the convention. An allegation of a breach of rights can be heard in the courts of this country. The HRA only applies to PUBLIC bodies. Private institutions such as private care centres may not be covered by the HRA.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) The Articles (HRA, 1998) 2. Right to life. Deprivation of liberty could affect quality of life for the patient in a positive or negative sense. 3. Prohibition of torture or to inhumane or degrading treatment or punishment. Deprivation of liberty especially if unlawful could be amount to the same as torture or inhumane treatment. 4. Prohibition of slavery and forced labour. 5. The right to liberty and security. Unless specifically justified, everyone has the right to liberty. This is the article most commonly quoted in DOL cases. 6. Right to a fair trial. 7. No punishment without law. 8. Right to respect for private and family life. Patients and/or representatives can argue not being able to have convenient access to their family is an unlawful deprivation of liberty. 9. Right to freedom of thought, conscience and religion. Being unable to have access to an official of a religious community again may be viewed as an unlawful deprivation of liberty. 10. Right to freedom of expression. 11. Right to freedom of assembly and association. Not having access to other people without just cause may be seen as an unlawful deprivation of liberty. 12. Right to marry and found a family. 14. Prohibition of discrimination. 16. Restriction of political activity of aliens. 17. Prohibition of abuse of rights. 18. Limitations on the use of restrictions on rights.

What this means in practice? People cannot be deprived of their liberty without first undergoing an assessment by appropriately qualified health/social care professionals. A third party, normally a relative or a carer, can request an assessment to determine whether (or not) a person is being deprived of their liberty. A patient who has no relatives or friends/carers will be given an Independent Mental Capacity Advocate (IMCA) to represent their interests during a DOLS assessment. DOLS provides protection to both the client and the healthcare/social care professional, to what routinely happened before April 2009 when people were routinely deprived of their liberty via the necessity of best interest, in other words via common law principles. DOLS only adds a more formalised approach, in the same way that the Mental Capacity Act places into statute what was often happening in clinical and social care practice.

The DOLS assessment The managing authority needs to state to the supervisionary body (in writing) reasons as to why someone needs to be deprived of their liberty. This is referred to as an application for a standard authorisation. The supervisionary body then commissions two independent assessors to assess the client/patient. One assessor will be known as the Best Interest’s Assessor; the other assessor is referred to as the Mental Health Assessor and must be a doctor who is qualified to undertake this assessment. In all, six assessments need to be completed:

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Age assessment: is the person 18 years old or over? If no a DOLS cannot be applied Mental Health Assessment: is the person suffering from a mental health disorder? If yes a DOLS maybe applicable Eligibility Assessment: is the person subject to, or should be treated and/or looked after via the Mental Health Act 1983? If yes, a DOLS cannot be applied Mental Capacity Assessment: Does the person lack the capacity to consent, as defined via the MCA, 2005? If Yes, a DOLS maybe applicable No Refusals Assessment: Are there any advanced decisions/refusals or decisions made by a lasting power of attorney, or from a deputy of the court of protection which may prevent a DOLS authorisation from being given? If yes, a DOLS may not be applicable Best Interests Assessment: Is deprivation of liberty in the best interests of the patient/client? Is DOLS necessary to prevent a person from suffering harm (harm needs to be assessed as serious harm, and the DOLS assessment must examine reasonable and appropriate conditions to be imposed to prevent such harm). A standard authorisation must be completed within 21 days. If all 6 of the assessments are in favour of depriving a person of their liberty then a DOLS can be provided for 12 months. The supervisory body (SB) will appoint a patient/client representative (Relevant Person Representative – RPR) to enable independent monitoring of the DOLS. Most RPR’s will be someone who is a carer or relative of the relevant person, although in some cases a paid representative can be appointed via the supervisory body (though they cannot be employed by the SB). Anyone involved who knows the patient/client can appeal the outcome of the DOLS via the court of protection. If one or more of the assessments is against the issuing of a DOLS, negotiations need to take place between the care provider and the care funder to avoid the implementation of a DOLS, or the client/patient may have to be moved to a more suitable location. If the SB/MA still feels a DOLS is necessary, alternative opinions can be sought, however a new application needs to be made. In emergency situations a DOLS can be issued via an urgent authorisation (Form UA1). The six checks must be completed within 7 (calendar) days, and an application for a standard authorisation (Form SA1) must be made at the same time. The care or hospital manager (the managing authority) must inform the council (supervisory body) so that a best interest’s assessor can assess the client/patient. Although the checks above are statutory requirements, the standard forms issued via the Department of Health are not. Nevertheless it is a statutory duty for the supervisionary body to keep records of all people deprived of their liberty; however forms can be altered and adapted according to local need, although the process has to remain consistent.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) DOLS do not apply to:-

  

The under 18 year old person A person subject to the Mental Health Act (1983) or a person whose treatment would be better served via the MHA A person who has made an advanced decision which would render a DOLS invalid

Scenarios The following scenario’s are based on existing case law (pre & post DOLS). They provide an example of some of the dilemma’s/issues faced by health and social care practitioners when deciding whether or not to deprive someone of their liberty. Scenario 1 Julie is a 37 year old lady suffering from a brain injury caused by hypoxia when she was 5 years old as a result of a respiratory arrest. Julie also suffers with a chronic delusional disorder. Julie is currently residing at the Greenfields Care Centre. Part of her condition has led Julie to believe she has numerous physical conditions. However despite numerous examinations, her GP and local hospital can find no cause to these conditions. Julie though does not want to stay in the Greenfields Care Centre but wishes to be admitted to a general hospital to seek physical examinations for her complaints. The staff in Greenfields is of the opinion that keeping her in this home would be in her best interests, due to the specialised staff employed within the home, and the treatment they are able to provide is the most suitable for her needs. Greenfields Care Centre is also close to Julie’s two brothers who are able to visit her regularly. Julie has suggested that keeping her in Greenfields is contravening article 5 of the Human Rights Act (1998).

Has Julie sufficient capacity to make a decision? Is she eligible to have her liberty deprived? If Julie is ‘ineligible’ to be deprived of her liberty, what alternative course of action is available to the medical professional?

Scenario 2 Brian is an 85 year old gentleman who is admitted to the local general hospital following a recent fall. Brian suffers with chronic dementia. The visiting times at the hospital are between 3 - 4 o’clock in the afternoon and 7 -9 o’clock in the evening. Mary, Brian’s daughter works full time, and is unable to attend afternoon visiting. She finds evening visiting particularly difficult due to a lack of suitable transport to take her home after 7pm. Mary asks the ward manager if she could visit Brian between the hours of 5 and 7pm. The ward manager refuses stating that the hospital has a strict visiting policy. Brian is very upset that Mary does not visit him very often. 58


Introduction to Law and Ethics (Iwan Dowie, July 2012) Is the hospital depriving Brian unnecessarily of his liberty? If Mary was to ask you to intervene, what steps would you take? Scenario 3 Peter is married to Wendy. Both Peter and Wendy are deemed to lack capacity. Georgeshire County Council suspects Wendy of being physically and verbally abusive to Peter, and in numerous instances the police have been involved. One night Wendy throws Peter out into the street, and Georgeshire County Council (GCC) finds suitable accommodation for Peter. GCC prevents Peter from returning home to live with Wendy due to her abuse (she has repeatedly called the home threatening Peter), although Peter is free to see her with supervision. Peter is also free to leave his current home as long as he does not return unsupervised to see Wendy. However Peter wishes to return home and this is also the wish of Wendy. GCC strongly believes this to be against the best interests of Peter. Is GCC lawfully depriving Peter of his liberty according to Article 5 of the HRA? Debate why or why not? Scenario 4 Gladys has been admitted via Beechfields Residential Home to hospital following a fall. Gladys has dementia and is therefore deemed not to have capacity. Her daughter Lucy wishes for Gladys to be taken home with her after her discharge from hospital, and she asks the hospital not to inform the local authority of her intentions. Gladys also has some modest savings and a small private pension. The local authority is concerned that Lucy, whom has a practical control of these funds, will have a greater opportunity to use these funds unwisely should Gladys be discharged into her care. The LA wishes for Gladys to return to Beechfields. Does the Local Authority have grounds for a DOL order to be placed upon Gladys in ensuring her return to Beechfields Residential Home? Scenario 5 Margaret is a schizophrenic lady, controlled by medication. She currently resides in the Sandy Banks residential centre. However the local authority wishes to place her in the Blue Waves care centre which has specialist support available for people with schizophrenia. Margaret however does not want to leave Sandy Banks. The local authority is considering moving her anyway and wants to undertake a DOLS assessment on Margaret. Is a DOLS necessary in this scenario? Explain why or why not. Scenario 6 Bill has Alzheimer’s, and is admitted to hospital for investigations. Bill requires a blood test, but due to his Alzheimer’s a nurse needs to physically hold down his arm for the doctor to take the bloods.

Is this a DOLS issue?

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Introduction to Law and Ethics (Iwan Dowie, July 2012)

Recent case judgements (Post Bournewood) – Answers to Scenario’s W Primary Care Trust v TB & Ors [2009] EWHC 1737 (Fam) – Scenario 1 This case examined whether the keeping of TB at a care centre referred to as V was lawful, despite her wishes to be treated at a general hospital for her ‘physical health’. TB was a 41 year old lady who had suffered brain injuries after an operation when she was 9. This injury causes TB to be incapacitated to make day-to-day decisions as defined via the MCA. The case specifically examined whether TB was an eligible or ineligible person to be deprived of her liberty. If she was deemed ineligible she would have to (due to her condition) be detained via the Mental Health Act (1983). The court found she was eligible, and therefore a DOL could apply. Some discussion was also held whether V (the care centre) could be classed as a hospital; hence TB could reasonably be classified as a ‘Mental Health Patient’ under paragraph 16 of schedule 1A of the MCA, 2005. However as V was not registered as an independent hospital, than V could not be held as a ‘hospital’, consequently TB could not be classified as a Mental Health Patient. The judge agreed therefore that TB was eligible to be deprived of her liberty. Part of the judgement also considered the proximity of V to TB’s brothers. If TB was to be treated long-term in York or London this would severely affect her brother’s abilities to take a part in her care. Her relationship with her brothers was seen as instrumental to her long-term programme of care, hence it was deemed to be in her best interests to remain at V.

Answer to Scenario 2 This may be seen more as a restriction of liberty, although if the hospital is unwilling to provide alternative arrangements for visiting than this could be seen as a deprivation of liberty. For practitioners before undertaking a thorough assessment for a DOLS, it may be more productive to speak to ward manager and her/his superiors to negotiate an alternative arrangement. In many cases, through negotiation, a DOLS may not be needed.

JE v DE and Surrey County Council [2006] EWHC 3459 (Fam) – Scenario 3 DE was unable to make decisions due to a lack of capacity with respect to his place of residence and the provisions for his social care. DE was in a long standing relationship with JE. After DE’s loss of capacity, allegations of abuse and neglect by JE to DE had been made by various parties. JE refused for DE to have contact with his daughter EW. JE later placed DE onto the street wearing only his pyjamas with a request that other accommodation be found for him. Surrey County Council placed DE into a residential home. Whilst living at the residential home, DE frequently asked to be replaced with JE, however due to his vulnerable status, Surrey CC prevented this from happening. Surrey did not consider whether it was in DE’s best interests to live with JE, although they would happily provide accommodation for DE anywhere else as long as it was not with JE. Their rationale being that they were restricting his right of residence under the doctrine of necessity. At no time did 60


Introduction to Law and Ethics (Iwan Dowie, July 2012) Surrey restrict access between DE and JE, except for brief periods when JE was mentally unwell. The key issue for the judge in this case was whether DE was ‘free to leave’. Although there was a real concern of abuse towards DE if he returned to live with JE, in this case facilitating DE the right to live anywhere, with the exception of living with JE, unlawfully deprived DE of his liberty.

Re PS (An Adult) [2007] EWHC 623 (Fam) - Scenario 4 PS was an elderly lady admitted into hospital in January 2007. She was ready for discharge by February 2007. However her daughter CA informed the hospital that she was going discharge her mother into her care, rather than to the care of T, which had been PS’s home since July 2006. T was a residential care and elderly mentally infirm unit. CA did not want the local authority to know of her intentions. However the hospital and LA was concerned that CA may misappropriate her mother’s funds. A court order was sought to deprive PS of her liberty to be able to go and live with CA. The LA also sought the powers to use reasonable and appropriate force (including the power of detention to prevent PS from absconding from [the T unit]). The judge in this case allowed for a DOL with respect to PS being discharged back to the T unit; however the judge did not grant the powers of restraint the LA was seeking. Appropriate monitoring of visits to ensure PS was not taken by CA was deemed sufficient.

Answer to scenario 5 Margaret probably still has capacity. Her schizophrenia is being controlled via medications. You cannot assume because of her condition that she does not have capacity (Re C, 1994).

Answer to scenario 6 This is not a DOLS issue. Here you are restraining Bill’s right to liberty, but in general you are not depriving his right to liberty. Under section 6 of the MCA you are allowed to restrict/restrain a person’s liberty if it is necessary to prevent harm to that person. However the act must be proportionate.

Implications Deprivation of liberty includes restriction to relatives, friends and families, unless there is substantial evidence to prove that either the client or the relative is in real and significant danger. Deprivation of liberty can be granted if it is in the best interests of the patient, however best interest needs to be assessed from the viewpoint of the patient as well as from the viewpoint of the Healthcare Professional. In JE v DE & Surrey County Council, the council failed to take into account whether it was in DE’s best interests to return to live with JE. Deprivation of liberty has to be reasonable and appropriate. Excessive deprivation may be unlawful. 61


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Controversies (DOLS) In JE v DE there is a real concern that DE could potentially be subjected to abuse from JE. There is also a concern that JE herself is capable of living with or able to help look after DE. Nevertheless the courts have decided that DE was unlawfully deprived of his liberty. The court took a different view in Re PS. The facts of the case however are somewhat different. In Re PS there is no indication that PS expressed any particular desire of her choice of residence, unlike in JE v DE, where DE expressed a wish to reside with JE. Nevertheless it raises the question that the courts can often appear contradictory in their judgements. There is also a concern that if someone is not made subject to a DOLS, then alternative placements may be necessary to ensure liberty is not deprived. However who will fund the additional costs that may occur? It will probably fall upon the supervisory body to fund extra money, and in the current economic climate this may be difficult to obtain. Finally DOLS potentially is a burden upon staff resources. There is still an issue of the number of Best Interest Assessors needed, as well as the necessary time to be given for all relevant parties to be released from current duties to undertake an assessment of an individual who may become subject to a DOLS. For many practitioners it may become easier or more appropriate to section a person under the Mental Health Act, rather than undergo a DOLS assessment. Finally.... If you are faced with a client, and you are not sure whether this person should be subject to a DOLS – Seek advice from your mananger/co-ordinator for DOLS. In extreme cases the SB may have to seek a judgement from the court of protection. REMEMBER as long as you follow policies and procedures, and you can justify your actions, it is unlikely you will become subject to malpractice proceedings. In the vast majority of cases the individual will be an obvious candidate for a DOLS.

Further resources Department of Health Website: www.dh.gov.uk/.../MentalCapacityActDeprivationofLibertySafeguards/index.htm -

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Equality Act (2010)

Do not confuse this Act with the existing Equality Act (2006). Please note that this Act received Royal Assent in April 2010 and came into force on the 1st October 2010.

Purpose of the Act

The Equality Act aims to consolidate all existing anti-discrimination legislation into one all purpose Act. Examples of present anti –discrimination legislation includes the Equal Pay Act (1970), Race Relations Act (1976), Disability Discrimination Act (1995) and the Employment Equality (Age) Regulations (2006).

The Government believes that despite legislation, discrimination is still taking place. The purpose of the Equality Act is to ensure discrimination is further reduced, and to provide an enhance protection for those people who have a disability or are part of a minority group.

Key components The Equality Act (2010) protects from discrimination people with the following ‘Protected Characteristics’:Age Disability Gender reassignment Race Religion or belief Sex Sexual orientation For example if a shop refuses to serve or deal with a person because they are disabled, this will be against the law UNLESS they can prove their refusal was not due to a person’s disability. Previously this was covered via the Disability Discrimination Act (1995); however the Equality Act will go further and will also make it illegal for public bodies/businesses to undertake multiple discrimination. For example Mary is a black woman who is unsuccessful for a job. (The job goes to a white man). In the Past Mary would have to sue via two pieces of legislation (Race Relations Act, 1976, & the Sex Discrimination Act, 1975). Under the Equality Act, Mary would only need to sue via the Equality Act, potentially making the process easier (and cheaper) than before. 63


Introduction to Law and Ethics (Iwan Dowie, July 2012)

The Equality Act also outlaws discrimination by association. In essence if a person is caring for someone, or is associated with someone who is perhaps disabled or gay it would be illegal for a business or a public authority to discriminate against them because of this association. For example Mark is friends with Gary. Gary is gay, Mark is heterosexual. The local shop refuses to serve Mark because he is friends with Gary. The local shop is guilty of discrimination by association. The Equality Act originally had the intention of placing new responsibilities (duties) upon public authorities. The first duty was referred to as the socio-economic duty. The public authority would have ensured that it takes into account the person’s social economic background and that access to services are not restricted simply because of where the person lives or upon their financial stability. A health related example of this duty may involve the local health provider having to think of ways to address the poorer sections of their society by increasing the number of health clinics or specialists to ensure people are not being unfairly disadvantaged due to geographical or demographical reasons. The second duty involved equality issues which make it illegal for a public authority to discriminate on the grounds of race, disability, sexual orientation, gender, age and religion. However the 2010 Coalition Government has decided not to enact this part of the bill, despite warnings from organisations such as Age Concern that inequalities of health would continue, and potentially worsen as a consequence.

Scenario Wendy is taking Joan who suffers with a learning disability to a local restaurant. Joan because of her disability makes a mess with her food. Some customers in the restaurant complain that Joan is “putting them off their food�. The waiter asks Wendy and Joan to leave.

Is this discriminatory? Explain why or why not in the box below.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) The above case could be classified as discrimination arising from a disability. If the waiter asks Joan to leave because of her disability then he is culpable under the Equality Act for his actions. Please note that if the waiter reasonably did not suspect Joan of having a disability then his actions may well be legal.

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Family Law for Healthcare Professionals Family law – This section examines aspects of family law relating to the child. It covers only briefly issues such as divorce or custody of the child. Family Law Reform Act (1969) Section 8: 16 & 17 year olds can legally consent to treatment without parental permission. Parents however retain the right to consent on behalf of the 16/17 year old if the 16/17 year old was to refuse treatment. There is no automatic right to refusal, however courts will consider all of the facts and may allow the under 18 year old the ability to refuse. 16 & 17 year olds can consent to being involved in research if considered to be part of their treatment. Where there is no benefit the Act does not allow for consent to be given, however common law principles may still apply. Re W [1992] Re W was a 16 year old girl suffering with anorexia nervosa. She refused to be treated in a specialised hospital. Court of Appeal ruled that the Act did not prevent the rights of the parents to consent on behalf of W. W retains a right to consent, but not to refuse treatment that was vital in saving her life. Scenario 17 year old boy is a practising Jehovah Witness. He refuses a blood transfusion. Parents give consent for him to have a blood transfusion. What would you do if you were the nurse/doctor who had to make a decision? __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ Similar to the case of Re W the boy has the right to give consent but he has does not have an automatic right of refusal. In these circumstances the nurse/doctor could go ahead and provide the boy with a blood transfusion on the basis of the parent’s consent. If the boy reached adulthood (i.e. 18 years of age) he would be able to refuse the treatment as long as he could demonstrate he had full understanding of the potential consequences. Children under 16 Gillick Competency & Fraser Competency (Gillick v. West Norfolk and Wisbech AHA and the DHSS [1985] 3 All ER 402). If the child can demonstrate a sufficient understanding of what is proposed they can give consent for themselves. This has been further established under section 1 (3) (a) of The Children Act (1989). In the case of Gillick the mother objected to doctors providing sexual health advice and treatments to children under the age of 16. Fraser competency guidelines used by sexual health practitioners and 66


Introduction to Law and Ethics (Iwan Dowie, July 2012) others (such as school nurses) relates specifically to contraception whereas Gillick competency can apply to all treatments. Fraser guidelines resulting from the judgment of Lord Fraser provide defences to the practitioner if they can be satisfied that the following points have been met:

    

The young person will understand the professional's advice; The young person cannot be persuaded to inform their parents; The young person is likely to begin, or to continue having, sexual intercourse with or without contraceptive treatment; Unless the young person receives contraceptive treatment, their physical or mental health, or both, are likely to suffer; The young person's best interests require them to receive contraceptive advice or treatment with or without parental consent.

Again whilst the Fraser guidelines specifically mention contraception, it is generally perceived to apply equally to treatments such as abortion. The legal case of Gillick only dealt with consent and not with refusal, which is not automatic and can be overridden by the parents and the courts (Re E [1993]). Nevertheless refusal of treatment, despite not being an automatic right of the child, will often depend on the nature of the treatment being declined. For example if a girl of 14 refused to have an injection and gave a good rational for doing so it would be unlikely that a court would force her to have the injection despite the girl being under the age of 18. Here the overall psychological health of the child as well as the physical aspects needs to be examined. Only if the child was in grave danger or the treatment was paramount for the child’s wellbeing will a child’s refusal be overturned. Non-Parents In cases when the child has no parents, The Children Act (1989) section 3 (5) allows people who have care of the child (such as a legal guardian with parental responsibility) to make decisions regarding the welfare of the child, including giving consent. Where there is no legal guardian, the local authority assumes parental responsibility for the child. Foster parents do not have automatic parental responsibility for a child in their care. Parental responsibility in these cases either belong to the biological/legal parents/guardians and or the local authority. Children with whom the local authority has sole parental responsibility are referred to as Looked after Children (LAC). Parental Consent (Against Best Wishes) Parents who give consent to an operation or procedure that clearly is not in the best interests of the child can have their consent overruled. Take a look at the case described below. Re D (A minor: wardship, sterilisation) [1976] 1 All ER 327. Re D was an 11 year old girl suffering with Sotos syndrome (a genetic disorder where excessive physical growth occurs in the first 2 to 3 years of life) was to undergo an operation for sterilisation. Mother gave consent. Educational psychologist disagreed with the operation so applied for the girl to be made a ward of court. The court felt that the operation was not in the best interests of the child.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) In Re B (A minor: wardship, sterilisation) [1987] 2 All ER 206, the House of Lords gave a ruling that all potential sterilisation cases affecting minors was to be decided by the courts. In summary, if the parent gives or refuses consent, and this is deemed not in the best interests of the child, the parent can be overruled.

Child Protection All parents have a legal duty to provide care for their dependent children under section 1 (1) of the Children and Young Persons Act (1933). Suspicions of child abuse by the nurse/doctor must be reported immediately. RCN guidelines stipulate that all hospitals should have in place a child protection officer. The Children Act (2004) places a legal duty upon professionals to work with other associated agencies to protect the interests of the child. The Children Act (1989) allows social services to apply for an order for the emergency protection of the child under Part V. Abuse by fellow colleagues, or by the institution as a whole must be reported, and the nurse is protected by statute via the Public Interest Disclosure Act (1998). The Children Act (2004) also established Children’s Commissioners to oversee inter-professional approaches to child protection and the upholding of the legal rights of the child. Wales was the first country in the United Kingdom to appoint a children’s commissioner.

Family Law: Recognition of Parental Responsibility (Simplified) Under the Children Act 1989: If the child’s parents are married to each other at the time of the child’s birth, both parents have parental responsibility. If they are not married, then the mother has sole responsibility. Since 1st December 2003 – unmarried fathers receive parental responsibility if they jointly register the birth with the mother. The court can give an unmarried father parental responsibility if they do not meet the criteria set above. If a child is taken into care, the person with parental responsibility does not lose this responsibility but shares it with local authority. All parents are responsible for financially supporting the child regardless of whether they have parental responsibility or not! Where there is a dispute between holders of parental responsibility, the best interests of the child is paramount. In Re C (Welfare of Child: Immunisation) [2003] the mothers of two children objected to their children receiving immunisations. The fathers however supported immunising the two children. The court held that immunising the children was in their best interests. Other Rights of the Child Every Child has the right to education even in long term hospitalised/institutional care. The Special Education Needs and Disability Act (2001) allows for a general duty to educate a child with special needs in mainstream education (though this is not an absolute right). The Child cannot be subject to corporal punishment except via the parents, although any chastisement must be reasonable! Caning or beating a child, or subjecting the child to humiliating punishment will no longer be viewed as reasonable.

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Other legislation relating to child protection The Sexual Offences Act (2003) came into force on the 1st May 2004. Under this act sexual activity under the age of 16 remains an offence even with consent. Sexual activity with children under the age of 13 will be classified as rape even with consent. The law will often take a common sense approach so if a 15 year old boy was having consensual sex with a 15 year old girl it is very unlikely that criminal charges will be brought. However if a 15 year old girl was having sex with a 25 year old man it is highly probable that the man will face criminal charges. Dilemma A child of 12 asks for condoms. You are the doctor or nurse – would you give condoms to the child?

Away from medical issues there are many things children can do despite not being 18. The healthcare practitioner needs to judge whether these things are legal or whether there is a cause for concern. Take the following example: Ben is a five year old boy. He is allowed a glass of wine on special occasions. Lisa the health visitor finds out on a routine visit that this is happening. What do you think Lisa should do?

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Introduction to Law and Ethics (Iwan Dowie, July 2012) It would depend on the quantity of the wine, the strength and whether it was just a taster. Under the law a child of the age of 5 and over is allowed to drink alcohol in private (Children and Young Persons Act, 1933) however the practitioner also needs to be mindful of their duties under The Children Act (1989) part 5 where it states that if an authorised person has reason to believe that ‘a child is suffering or is likely to suffer significant harm’ then an application can be made for a child assessment order. Hanif is a six year old boy. His parents want him to have a circumcision as they are both of the Islamic faith. Hanif has become very withdrawn in school. When asked by the teacher what is wrong Hanif says he is frightened of having a circumcision and he does not want it to happen but has to as mummy and daddy will be very cross. You are the healthcare professional what do you think?

In general if both parents consent to the procedure, the circumcision can go ahead, however the boy must be brought up as a Muslim. If only one parent is a Muslim and the other parent objects to the circumcision, following the case of Re S [2005] 1 FLR 236, the circumcision cannot go ahead. The above case however opens up a few ethical issues – for example what about the autonomy of the child? Is the child Gillick competent to make his own decision? Does the circumcision itself contravene article 3 of the Human Rights Act (1998) – the right to not be subjected to undue harm? Much will depend upon how you perceive the role religion will play in Hanif’s life. By not having the circumcision might in the longer term cause more distress for Hanif. In contrast female circumcision is illegal in the UK via the Female Genital Mutilation Act (2003). Laming Reports (2003 & 2009) The crux of the Children Act (1989 & 2004) is that all health and social care professionals have a statutory duty to report to the appropriate authorities any alleged child abuse. Nevertheless despite legislation several cases have emerged where failings in the child protection system have been clearly demonstrated. The first of these was the abuse and subsequent murder of Victoria Climbie who died at the age of 8. The Laming Report (2003) criticised the lack of information sharing amongst health and social care professionals, and the report recommended an obligation upon child protection workers and associated professionals to share information with each other, and whilst recognising that some professionals view information sharing as potential breaches in confidentiality, Lord Laming states clearly in the 2009 report that ‘whilst the law rightly seeks to preserve individual’s privacy and confidentiality, it should not be used (and was never intended) as a barrier to appropriate information sharing between professionals. The safety and welfare of children is of paramount importance, and agencies may lawfully share confidential information about the 70


Introduction to Law and Ethics (Iwan Dowie, July 2012) child or the parent, without consent, if doing so is in the public interest’. Lord Laming views the protection of a child from harm as being in the public interest. These recommendations were adopted in the 2004 Children Act. A children’s database referred to as ContactPoint was established for England which enabled practitioners to view information on all children under the age of 18. The database was discontinued in 2010 in response to mounting concerns of breaches in privacy, abuse of the data, and the overall cost of the system. The Laming Report 2009 calls upon the Government to improve training for health and social care professionals in child protection. The report also recommends an increase in health visitor numbers and a reduction in their case loads to facilitate more time to be spent assessing and supporting the under fives.

Age of Criminal Responsibility Children reach the age of criminal responsibility when they are 10 years of age (Crime and Disorder Act, 1998). If a child of 10 is charged with a criminal offence social services will need to assess the child’s home life to see if the child’s interests are being best served by remaining in that environment or it further support is needed to help with parenting.

Separation, Divorce & Welfare of the Child Separation and divorce are some of the most traumatic events to occur in a child’s life. The law encourages parents via the Children Act (1989) to work in partnership, and for both parents to resolve matters amicably as it would be better for the welfare of the child. Under the Children Act the law acknowledges very clearly that the welfare of the child is paramount when determining considerations such as the residency of the child, and contact with the chid. In section 8 a court can make a residence order where the court will decide whom the child should live with and a contact order, which requires the parent with residence to provide access to the child of the person named in the contact order. There are also prohibited steps which can be made as part of section 8 which prevents a party from doing something which involves the child – for example taking the child abroad if there is a risk that the child might not return home. Contact orders are often not made where there is evidence of domestic abuse towards either the child or the mother (and in rare cases the father). In Re H (Children) (Contact Order) No 2 [2002] a father with Huntingdon’s disease was prevented from seeing his children due to the real threat of harm to himself and the children should he have been given contact (the children in this case however wanted to see their father).

Adoption Under the Adoption and Children Act (2002) adoption once completed via an adoption order terminates for ever the parental responsibility of the natural parent (s) (Section 46 (2) (a)). However the law recognises that the child may still wish to have contact with the birth parents and relatives and this should be encouraged if in the best interests of the child. Under section 1 (5) the act requires for professionals to have consideration towards the child’s religious persuasion, racial origin and cultural linguistic background. Placing a child of Jewish faith with adopted parents who are Christian may not serve the best interests of the child. However the law only requires consideration and there are cases when the child from a different racial background or religious background to that of the adoptive parents has been allowed by the courts (Re P (a child) [1999]).

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End of Life Legal Definition of Death Death is an inevitable and universal part of life. Death can occur suddenly or it can occur progressively at the end of a long illness or at the end of a natural life. Benjamin Franklin (1706 – 1790) stated that ‘nothing in life is certain except death (and taxes)’. From a legal viewpoint there is no standard definition of death in the United Kingdom, and unlike the United States there is no legal statute defining death. According to the Royal College of Physicians death occurs when there is 'irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe.’ This end of consciousness must be permanent and not transient. Traditionally death was established if the heart stopped beating and the patient ceased breathing, however with technological advances this definition of death became inadequate in certain cases (neurological patients). Brain stem death can be used in such situations as the criterion of death. The problem ethically with brain stem death is that the patient could still be ‘alive’ in other words not a corpse and yet be brain dead. There have also been occasions when ventilators have been switched off only for the person who was ‘brain dead’ to remain alive. A diagnosis of brain stem death has to be undertaken by two experienced registered medical practitioners who must carry out the tests independently. Brain Stem Tests involve; 1. Shining a light into the eyes in turn to see if pupils react; 2. Applying a swab to the cornea of eye to see if it causes blinking; 3. Irrigating each ear with ice cold water to see if it causes movement of the eye; passing a suction catheter down the windpipe to see if the patient gags or coughs; 4. Exerting pressure on the bony margin above the eye to see if patient grimaces to pain. If any of these reflexes are present it means part of the brainstem is still functioning and testing is discontinued immediately. If none of the brainstem reflexes are stimulated then apnoea test is performed. If there is no response following this test the patient is reconnected to ventilator and the tests are repeated within a few hours. When the second set of tests confirm the diagnosis of brainstem death the ventilator is disconnected for the last time and Death is certified. In the case of Anthony Bland (Airedale NHS Trust vs. Bland [1993]), a patient who was in a persistent vegetative state (PVS), demonstrated the utilisation of brain stem death criteria to establish lack of normal functional life, and whether or not it would be legal to discontinue ventilating the patient hence causing a clinical death. The court of appeal held that the discontinuation of treatment was justified due to the irreversible nature of the patient’s condition and that it would be in his best interests for treatment to be withheld and that its discontinuation was in accordance with good medical practice. The House of Lords confirmed the decision made by the court of appeal (the doctor involved in the Bland case was warned by the police that the withdrawal of treatment would be classified as murder). The judgement by the Court of Appeal and the House of Lords provided for a defence against such a crime. For clinical death to be confirmed there needs to be a cessation of the heart and breathing. The patient or person will have fixated pupils, a lack of movement, and a general paleness will be seen. In most cases this will suffice a diagnosis of death. The death certificate must be signed by a medical doctor (Birth & Deaths Registration Act, 1953) although a nurse can verify death. Deaths which are termed suspicious or the reason for death is uncertain will be referred to the coroner. Coroners have the power to hold an inquest into the death if the death occurred as a result of violence, or the death was sudden with an unknown cause, or if the death occurred in a prison (Coroners Act, 1988).

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Introduction to Law and Ethics (Iwan Dowie, July 2012) From a societal viewpoint physical death does not always equate to an absolute death, and many people believe that consciousness and the soul continue to live. Death is therefore a controversial subject, and one of the reasons why topics such as euthanasia are hotly debated in the media and society as a whole.

Euthanasia Euthanasia remains illegal under UK law. Voluntary euthanasia or assisted suicide (where a person wants to die and asks for assistance to do so) is an offence that can result in a criminal prosecution against anyone assisting a person to die. Under the Suicide Act (1961) a person can legally take their own life, however aiding and abetting a suicide is again illegal. The case of Dr Nigel Cox in 1992 (R vs. Cox [1992] 12 BMLR 38) illustrated the legal position in this area. Dr Cox was a consultant rheumatologist who administered two ampoules of potassium chloride to a patient (Lillian Boyes) resulting in death. Lillian Boyes had asked Dr Cox to help her end her life. Dr Cox was charged with attempted murder and was given a 12 month suspended sentence. In contrast the case of BodkinAdams in 1957 (R vs. Bodkin-Adams [1957] Crim LR 365) allows doctors and other healthcare professionals to prescribe and administer medication which may hasten death as long as the intention is for some other purpose, such as pain relief. Non-voluntary euthanasia is where the person who is killed is incapable of giving their consent. Again the legality of this is open to interpretation - for example the switching off a ventilator will cause the death of a patient, but the benefit of keeping them alive would not be in their best interests. As seen in the Bland case medical practitioners would be entitled to do this, and would be supported by law. On the other hand injecting a patient with medication to kill the patient as you feel it would be in their best interests will be classified as murder. Involuntary euthanasia where the patient or person chooses life but is killed anyway will be seen in most cases as murder. There may be exceptions in times of war etc when the killing of a person in these circumstances will be acceptable. Euthanasia law in the UK is therefore confusing; take the following examples: in the case of Diane Pretty (2002) the law would not allow Mrs Pretty the right to die at her own choosing. In contrast the law acknowledged via the case of Miss B (2002) for the patient to die, by removal of the ventilator on her request. Active v Passive Euthanasia Euthanasia where the intention is to kill a patient is sometimes referred to as active euthanasia. Where the intention is not to kill this is described as passive euthanasia. Case Study You see a person who has been very badly burnt in a house fire. They are screaming in agony. You have a few drugs that you can administer that will end their life. In your clinical judgement they will die soon anyway. What would you do?

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Assignment examples for modules where an assignment is a component of the assessment.

PLEASE NOTE THE FOLLOWING ABSTRACTS IS FOR GUIDANCE ONLY. COMMENTS IN BOLD IS SUGGESTIVE NOTES.

The first abstract will provide an example of how an essay needs to be structured, and the style expected. However it is not exhaustive and individual styles may differ. Remember for your assignment you MUST discuss a dilemma from a legal AND professional viewpoint. Referring to only one element will result in a refer grade being awarded. CAPACITY AND CONSENT

For the purpose of this assignment, the author intends to discuss and analyse the legal and professional implications of an issue encountered in clinical practice. To protect confidentiality (NMC, 2008) real names are substituted with pseudonyms. NO NEED FOR A LENGTHY INTRODUCTION, KEEP SHORT AND SUCCINCT!

Mrs Jones was an 80 year old lady admitted to ward B following a collapse at home. Mrs Jones suffered with dementia, although she had long periods of lucidity. After three days on the ward Mrs Jones refused food, and as a result she became to look frail and weak. Consequently the nurse looking after her informed the medical team. The doctor after examining Mrs Jones suggested a PEG insertion. This procedure was explained to Mrs Jones informing her of the rationale underpinning the doctor’s decision; however she refused to provide a valid consent. Nevertheless the doctor decided it was in her best interests for the procedure to take place, regardless of the patient’s refusal. SCENARIO NEEDS TO BE SUCCINCT, AND THE ISSUE/DILEMMA CLEARLY EXPRESSED! For consent to be valid, the patient has to demonstrate an understanding of what is being asked of them, and be able to make an informed decision based on the information provided by the healthcare professional (Dimond, 2008). As a general principle it is assumed by law that all adults over the age of consent have the ability to decide for themselves whether to accept or decline treatment being proposed or offered (Schloendorff v New York Hospitals, 1914). THE USE OF RELEVANT CASE LAW IS ESSENTIAL. However as suggested by Brazier (2004) there will be occasions when an adult cannot provide consent, most notably during periods of incapacity. Incapacity is best defined via the Mental Capacity Act (2005:s2) if the person in question is ‘unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning 74


Introduction to Law and Ethics (Iwan Dowie, July 2012) of, the mind or brain’. RELEVANT STATUTES MUST ALSO BE REFERRED TO! In the case of Mrs Jones, her dementia has the potential of affecting her ability to make a rational decision; hence there is a need for a suitably qualified health professional to make that decision based on the patient’s best interests (Kennedy & Grubb, 2004). However it is vital not to assume that the patient is incapable simply because they are suffering from a ‘mental health’ condition. Mrs Jones may be suffering from a mild form of dementia, and as demonstrated in the case of Re C [1994] as long as the patient can understand the information, retain the information, and can use that information to weigh up the benefits and consequences of their actions; this patient can legally give or decline consent. This is known as the three stage test of capacity. The Mental Capacity Act (2005) adds a further test, in that the patient must also communicate their decision (Four stage test of capacity).

In the case of Mrs Jones, she expressed very clearly, even on admission to the unit, that she wanted to die and she was aware she had dementia; nevertheless there were also occasions when she became disorientated. However there was no evidence of an advance decision; hence the medical staff felt that they had little option but to make a decision on her behalf. Had Mrs Jones made an advanced decision, and then if it was valid the doctor is legally obliged to abide by its instructions (MCA, 2005). An advanced decision is defined by Herring (2007) as.... EXPLORING POTENTIAL OUTCOMES CAN BE BENEFICIAL, BUT IT MUST BE RELEVANT!

The family of Mrs Jones was appalled that the doctors had inserted a PEG against their mother’s wishes, and wished to make a formal complaint. They claimed the doctors were being negligent in their duty and that the PEG caused a great deal of psychological harm to their mother. Negligence is defined by Dimond (2008) as........ ALTHOUGH THIS ASSIGNMENT IS FOCUSSING ON CAPACITY AND CONSENT, USING OTHER APPORPRIATE ISSUES IF RELEVANT CAN BE BENEFICIAL BUT YOU MUST RETURN TO THE CENTRAL THEME. THERE IS A DANGER THAT YOU WILL TRY TO COVER TOO MANY TOPICS, CONSEQUENTLY EACH TOPIC IS ONLY SUPERFICIALLY EXPLORED. However to counteract against a claim of negligence the doctors can rely upon the Bolam Test (1957) to support their actions. The Bolam Test states....... THE USE OF ANALYSIS MUST BE EVIDENT! HERE THE AUTHOR IS USING THE BOLAM TEST TO SUGGEST TO THE READER THAT THE DOCTORS HAVE A LEGAL DEFENCE VIA CASE LAW TO INSERT THE PEG. You can then add further analysis by counter-arguing Bolam with the ruling made in the Bolitho case.

OTHER COMMON TOPICS

BREACH OF DUTY OF CARE (NEGLIGENCE) Must define ‘duty of care’. Use the case of Donoghue v. Stevenson *1932+. This case set the precedent for duty of care and established the neighbour principle. Explain the three parts that determine negligence – 1. A duty of care has to be owed. 2. A breach in that duty needs to have 75


Introduction to Law and Ethics (Iwan Dowie, July 2012) occurred. 3. Harm is suffered by the patient as a consequence of that breach. Please note harm can be psychological as well as physical. Negligence can apply to a variety of topics such as poor manual handling, administering the wrong medication, and in some cases crushing the medication. Remember though that you still need relevant statutes and cases to support your answer, for example The Medicines Act (1968) or The Manual Handling Operations Regulations (1992).

EUTHANASIA This tends to be a difficult issue for discussion. Please seek advice from your supervisor prior to undertaking this topic. You need to discuss active and passive euthanasia. It must be clearly noted that active euthanasia is illegal under UK law (R v. Cox, 1992). Assisting the death of a patient is illegal via the Suicide Act (1961). R v. Bodkins Adams [1957] allows healthcare professionals to administer medicines that may hasten death, though the intended outcome is to relieve the suffering of a patient (i.e. Extreme pain). Discussion re: the doctrine of double effect is useful. Passive euthanasia is often legal and referral to cases such as Airedale NHS Trust v. Bland [1993] can be used as support. Other cases such as Re T [1992] can also be discussed as the law allows a healthcare professional to accede to a competent patient’s wishes not to be treated, although as stated in the ruling of Re T, the consent must be valid and freely given, free of any duress. Dilemma’s such as the patient requesting an increase in their Diamorphine because they perceive this drug will help hasten death needs to be discussed with a balanced view – for example the doctor may agree to an increase, but the intention of the doctor may be very different to that of the patient.

ABORTION This tends to be a difficult issue for discussion. Please seek advice from your supervisor prior to undertaking this topic. Starting point: The foetus has no legal rights under UK law EXCEPT via the Congenital Disabilities Act 1976. This Act allows the child to sue for compensation for harm suffered as a foetus (except the mother). Technically though this act confers post natal rights as opposed to giving rights to a foetus. Under the Infant Life Preservation Act 1929 it is a criminal offence to destroy the life of a child capable of being born alive. Only when the child is born and is able to survive independent of its mother does it gain legal recognition as a person (Rance v Mid-Downs Health Authority, 1991). The Abortion Act (1967) allowed an abortion up to 28 weeks, although The Human Fertilisation and Embryology Act (1990) amended the 1967 Act to reduce the time limit from 28 weeks to 24 weeks. Technically the Abortion Act does not make abortion legal; however it does provide a legal defence for practitioners carrying out abortions. REMEMBER you do need a dilemma to include some of these points. For example it may be a 16 year old girl wishing to have an abortion – in this case referral to Fraser competency (1985) is essential in determining the level of understanding required by law for the minor to undertake consent for herself, rather than consent being sought from a parent or a legal guardian. Another dilemma can be for a healthcare professional to refuse to care for a person who has undergone an abortion. Section 4 of the Abortion Act allows health care 76


Introduction to Law and Ethics (Iwan Dowie, July 2012) workers to object in moral grounds to participating in any treatment relating to an abortion. However section 4 states that if necessary to save life or prevent grave injury, all professionals regardless of moral stance continue to have a duty of care to the patient. Failure to provide this duty of care can lead to negligence. Relevant cases and statutes surrounding negligence can then also be discussed.

HUMAN RIGHTS ACT (1998) In most scenarios a reference to The Human Rights Act can be made. However you must ensure the relevant article(s) are used. For example a patient making an advanced decision to be made Not For Resuscitation (NFR) in the event of a cardiac arrest, whom is then subsequently resuscitated by the medical staff might cite breaches of articles 2, 3 and 10. (Right to life, right to be free from inhumane treatment or torture, and right to freedom of expression). Likewise a releative wishing to keep their family member alive at all costs might cite article 2 (right to life) as a reason for making this request. However you must discuss the potential implications and paradoxes, for example it might be seen by some people that keeping someone alive at all costs who might be suffering grave pain, could contravene article 3.

OTHER NOTES Scenarios dealing with breaches of information giving, confidentiality and record keeping will encompass several aspects of medical law, depending upon the situation. For example disclosing information to a relative without the knowledge of the patient (whom is deemed competent), may cause pyschological harm to the patient should they discover the breach. In these circumstances potential negligence may have occurred. However REMEMBER the law is complex – if the patient lacks capacity, information can be disclosed to a relative or carer, or if the doctor feels that the patient would suffer pyschological or physical defects, he/she can withold information – this is referred to as therapeutic privilidge. In the case Sidaway v Bethlem Royal Hospital [1985] Sidaway was not informed of a risk that there was 1% chance of spinal cord damage associated with an operation to free the nerve root. Mrs Sidaway suffered partial paralysis, and took the doctors to court for failure to disclose to her this risk. The House of Lords however stated that there was no obligation for a doctor to disclose an insignificant risk, and accepted that had the doctors told Mrs Sidaway of the risk, then this could have affected her psychologically in making a reasoned choice. However you can contrast this case by the ruling made in Chester v Afshar [2004].

For record keeping, key statutes such as The Access to Health Records Act (1990), and The Data Protection Act (1998) should be referred to, and the case of Gaskin v. United Kingdom [1990] which preceded these statutes would place your discussion into context.

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Legal & Ethical Academic Posters – for courses where a poster is a part of the academic assessment.

Some assessments require an academic poster relating to either a legal or ethical theme. It is important to identify a topic but ensure the topic is not too wide - for example ‘The Health Visitor and information giving’ – this title is very wide and does not tell the reader if the focus will be upon confidentiality or record keeping, and what angle will you be exploring - the law or the ethics behind information giving? The Health Visitor: record keeping and the law would be a clearer title. Make sure you use relevant case law and statute law to support your discussion, or relevant ethical theories. Ensure the theme is clearly related to your speciality – for instance occupational health nursing. Use appropriate illustrations - using a flower in a record keeping poster might be seen as unusual whereas a paper and pad will be more suitable. Academic posters MUST be referenced. The references must be seen on the bottom of your poster. Posters will tend to be A1 to A2 in size. Any smaller and the poster will become too small for general viewing. All posters should be accompanied by a 300 word abstract which should reflect the content of the poster – see your supervisor for further advice. Take a look at the poster example below. Make some comments about the content and the background. Would this be a suitable academic poster?

The Surgeon and Record Keeping: A Legal Perspective Introduction to Record Keeping

Case law relating to records

According to Dimond (2008) record keeping is the cornerstone of medical practice. Records can be used in a court of law to defend and in some cases attack our practice. There is an onus placed upon us as practitioners to ensure our records are clear, consistent and factual (Williams, 2010). Under the Data Protection Act (1998) there is also a legal duty to ensure any records maintained by us regarding patient care is kept secure and not passed on to others unless necessary.

There are various case law examples to illustrate the importance of records in practice. In the case of McLennan v Newcastle HA [1992] the practitioner was able to prove through his records that he has disclosed all the risks to a patient who was claiming otherwise. However in the case of Marriot v West Midland RHA [1999] the lack of clear records allowed the court to decide that the practitioner was negligent for his actions.

Conclusion: Record keeping is an integral part of medical practice, and we have a legal obligation to ensure our records are kept up to date and are factual in nature; Otherwise we might end up losing our case in court! References: Data Protection Act (1998) HMSO, London. Dimond (2008) Legal Aspects of Nursing, 5th Ed, Pearson, London ETC.....

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Good points: The poster is related to a specific theme. The background picture has relevance to the topic as it illustrates records. There is an introduction, main body and conclusion. There are no noticeable grammatical errors. Bad points: The main body is brief. The background picture ‘swamps’ the poster and the text can be difficult to read - the illustration is also very ‘busy’. The content has not been related to the surgeon and his or her practice.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Š2013 UNIVERSITY OF SOUTH WALES

Important Legal and Ethical Cases in Medical Law Iwan Dowie

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Record Keeping – Key cases

Saunders v Leeds Western HA [1993] 4 Med. L.R. 355 Case involved a normally fit four year old girl who suffered a cardiac arrest during an arthoplasty operation and as a result developed brain damage, quadriplegia and blindness. The theatre staff argued that the pulse stopped abruptly, however there was no evidence in the records to suggest this was the case. This case is also an example of Res ipsa loquitur which allows the plaintiff to infer negligence on the part of the defendant. Res ipsa loquitur is often used in complex cases, where the plaintiff cannot identify the precise nature of the negligence which caused the harm. In Saunders the court was of the opinion that a normally fit four year old would not normally suffer a cardiac arrest if the appropriate protocols re the anaesthesia is used correctly. McLennan v Newcastle HA [1992] 3 Med LR This case provides a certain amount of legal weight to record keeping. In this case a patient alleged that she had not been told of the relatively high risks in connection to her operation. The surgeon however had written in her notes that the risks were disclosed and understood by the patient, and consequently the judge decided that in all probability the patient had indeed been told of the risks. Note: the written entry was dated at the time of discussions with the patient. Marriot v West Midland RHA [1999] Lloyds Rep Med 23 This case involved a GP on a home visit who failed to refer a man who had suffered a head injury following a fall. GP did not take the man’s notes with him, and found it difficult in court to recall any detail in respect to the visit. This case also supports the ruling of Bolitho, where the expert testimony did not stand up to logical analysis, and therefore the GP was held negligent for his actions (or lack of). Deacon v McVicar [1984] QBD In this case the judge gave an order to be able to see the notes of the other patients to see if a defence of being too busy would stand up to scrutiny.

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Duty of Care/Standards of Care – Key Cases

Donoghue v Stevenson [1932] AC 562 A friend of Mrs Donoghue bought a bottle of ginger beer. The ginger beer contained a decomposing snail. Mrs Donoghue suffered with gastroenteritis as a consequence. The manufacturer should have foreseen the danger of leaving bottles unopened in a warehouse and hence was held liable. Lord Atkin mentions the ‘neighbour principle’ in that you must take reasonable steps to avoid acts or omissions which you could reasonably foresee would be likely to injure your neighbour. Please note the law uses the word ‘reasonably’. Caparo Industries plc v Dickman [1990] 2 AC 605 This case involved poorly prepared company accounts. The shareholders sought compensation for losses. House of Lords rejected the claim; however this case did introduce a threefold test for consideration: 1. Harm must be a ‘reasonably foreseeable’ result of the defendant’s conduct. 2. There must be a relationship of proximity between the defendant and the claimant & 3. It must be fair, just and reasonable for liability to be imposed. Caparo confirms a fourth stage to a test of negligence – owe – breach – harm – proximity. Bolam v Frien Barnet HMC [1957] 1 WLR 582 Patient underwent ECT treatment but was not given any relaxant drugs or restraint during the procedure. Consequently he suffered many injuries including fractures of the acetabula. However it was seen as standard medical practice not to restrain or provide muscle relaxants, and it was also seen as standard not to warn the patient. Bolam lost his case. The case itself set a precedent in determining standard of care/treatment and as long as the rest of your peers within your profession agree with the actions you took you will not be viewed as negligent. Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 This case makes an alteration to the case of Bolitho. In this case a two year old boy required intubating. The doctor negligently failed to turn up, however her defence was that she would not have intubated anyway. Expert opinion was divided. The House of Lords found the doctor was not negligent, and made a ruling which gave permission to allow judges to ‘dismiss’ expert opinion if that opinion did not stand up to logical analysis.

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Consent to Treatment – Key Cases

Re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 Patient was a schizophrenic in-patient who did not want his leg amputated, despite medical advice. C was able to demonstrate to the court that he had 1. Understood the information. 2. Retained the information & 3. Weighed up the benefits and the consequences of his actions. This became known as the three-stage test for capacity. The Mental Capacity Act 2005 now adds a further test that you must be able to communicate that decision. Re MB (An Adult: Medical Treatment) [1997] 2 FLR 426 Case involved a lady who refused an injection (due to a needle phobia) that was required to undergo a caesarean. The court held that the fear of the injection rendered the patient incapable in making a rational decision; therefore the doctors could proceed with the injection and the operation. Re T (Adult: Refusal of Treatment) [1992] 3 WLR 782 T (adult) was a non-practicing Jehovah Witness who needed a blood transfusion. T’s mother who was a practicing Jehovah Witness convinced T to refuse the blood transfusion. Court overruled T’s refusal due (in part) to undue distress being placed upon T by her mother. One of the key principles of this case is that consent in order to be valid must be freely given. Gillick v West Norfolk and Wisbech AHA [1985] 2 WLR 413 Victoria Gillick felt it was wrong for a GP to provide sexual health advice to her 15 year old daughter without first seeking permission from her parents. The court held that as long as the child is ‘Gillick’ competent (now referred to as ‘Fraser competent’) the child is entitled to treatment/advice without parental consent. This case however does not provide an automatic right to refusal.

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Confidentiality – Key Cases

Ashworth Hospital v MGN Ltd [2002] 1 WLR 2033 In this case the Mirror newspaper published information concerning the treatment of Ian Brady, one of the Moors murderers. The information had come from an employee working at the Ashworth Hospital. The Ashworth Hospital took the Mirror paper to court seeking disclosure to the source’s identity. The court held that the employee could be named as it is an essential duty of anyone working within a healthcare setting to be respectful of patient confidentiality. W v Edgell [1990] 2 WLR 471 The plaintiff (W) was a paranoid schizophrenic who in the 1970’s had fatally shot five people and seriously injured two others. In 1986 he applied to the mental health review tribunal for release. However the secretary of state refused citing his continued belief that the patient remained a danger to public security. W’s solicitor commissioned a report from Dr Edgell who was working as an independent psychiatrist. However his report confirmed that W was a danger to the public due to his continued interest in making homemade bombs. W saw a copy of the report and sought an injunction to prevent disclosure of the report, that he received all the copies of the report, and he wished to claim damages for the breach of the legal duty of confidence. The court held that a duty of confidence is not absolute, and that disclosure is necessary in cases where there is a strong public interest. X v Y [1988] 2 All ER 648 This case involved two HIV positive doctors. A national paper had found from hospital records the HIV status of these two men, and there were indications that the paper was going to publish their names. The two men applied for an injunction. The court granted the injunction, whilst recognising that there was a possible public interest test here. However the court felt that the protection of medical records and confidentiality in general was of a greater weight than the disclosure of the names of the two doctors via the public interest test.

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OTHER CASES FOR REFERRAL

Ahsan v. University Hospitals of Leicester NHS Trust [2006] EWHC 2624 (QB) – Respect of beliefs (mentally incapacitated patients) The trust wanted a Muslim patient in a persistent vegetative state to be treated at a nursing home. The husband objected and wished for his wife to be cared for at home where her spiritual needs as well as her care needs could be met. The courts agreed with the Husband that his wife would be better cared for at home. Principle: The religious beliefs of an individual should not be disregarded in deciding how that person should be cared for in the event of supervening mental capacity, and the wishes of the family should be taken into account.

Airedale NHS Trust v. Bland [1993] 1 All ER 821 HL – Withdrawal of treatment Tony Bland, a victim of the Hillsborough disaster was in a persistent vegetative state. Doctors asked the court for permission to stop feeding and hydrating him, and to withdraw medical treatment such as antibiotics. The court agreed as this was deemed to be in his *Tony Bland’s+ best interests. Principle: In circumstances where the treatment offered is providing no benefit, doctors can withdraw treatment including artificial feeding and hydration, effectively allowing the patient to die. However Bland did not set a precedent, and in PVS cases doctors still need to approach the courts for a ruling.

JE v DE and Surrey County Council [2006] EWHC 3459 (Fam) - Deprivation of Liberty DE was unable to make decisions due to a lack of capacity with respect to his place of residence and the provisions for his social care. DE was in a long standing relationship with JE. After DE’s loss of capacity, allegations of abuse and neglect by JE to DE had been made by various parties. JE refused for DE to have contact with his daughter EW. JE later placed DE onto the street wearing only his pyjamas with a request that other accommodation be found for him. Surrey County Council placed DE into a residential home. Whilst living at the residential home, DE frequently asked to be replaced with JE, however due to his vulnerable status, Surrey CC prevented this from happening. Surrey did not consider whether it was in DE’s best interests to live with JE, although they would happily provide accommodation for DE anywhere else as long as it was not with JE. Their rationale being 85


Introduction to Law and Ethics (Iwan Dowie, July 2012) that they were restricting his right of residence under the doctrine of necessity. At no time did Surrey restrict access between DE and JE, except for brief periods when JE was mentally unwell. The key issue for the judge in this case was whether DE was ‘free to leave’. Although there was a real concern of abuse towards DE if he returned to live with JE, in this case facilitating DE the right to live anywhere, with the exception of living with JE, unlawfully deprived DE of his liberty.

Nettleship v Weston [1971] – 2 QB 691 - Standards of Care Mrs Weston (a learner driver) crashed her car injuring in the process her driving instructor Mr Weston. He sued Mrs Weston for damages. The judge held that Mrs Weston was to be compared with all drivers, and in this case did she meet the standard required. The judge felt that she did not and therefore Mr Nettleship won his case. However the level of compensation awarded took into account his occupation as a driving instructor and hence the level awarded was a nominal amount. Principle: Inexperience is no defence in law. If you undertake a task you will be judged via the generic standard that will apply to that task.

Chatterton v Gerson [1981] – 1 All ER 257 QBD – Information giving Patient underwent an operation however the doctor did not explain all the risks. The court held that it was a duty of the doctor to explain what he needs to do, and possible implications. However the plaintiff did not win her case as there were insufficient grounds to establish negligence on the behalf of the defendant. Please note that in the case of Sidaway (Sidaway v Bethlem Royal Hospital, 1985 – AC 871) although there is an obligation by the doctor to disclose significant risks, risks which are deemed insignificant can be withheld (commonly referred to as therapeutic privilege).

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Ethics – Template Answer

Ethics is an integral part of health care practice, and often referred to as a justification for taking a course of action. Ethics can be viewed as an extra tool in aiding a practitioner’s decision when the law in itself cannot always provide the answer.

For example a patient is unable to consent to treatment due to mental incapacity. The law requires the practitioner to act in the best interests of the patient in these circumstances. But what is meant meta-ethically by ‘best interest’? The paternalistic practitioner may take the view that their own recommendation for treatment is followed as they [the practitioner] knows what is in the best interests of the patient. However a practitioner may feel inclined to discuss treatment options with the patient’s next of kin and/or carers to try and establish what the patient would have chosen should they have been in a position to decide for themselves - here the practitioner is trying to seek the best interests (Beneficence) of the patient with consideration to past wishes, hence respecting the autonomy of the patient even though the patient is unable in their present state to make a competent decision with respect to treatment. The practitioner may feel that this patient needs to have an operation to enable the patient a better quality of life and therefore goes ahead with the treatment. Utilitarianism often examines the consequences of an action (referred to as consequentialism). If the eventual outcome is good then the action itself is permitted even if some harm occurs along the way. However a deontological view will differ – the operation, despite best intentions may, paradoxically go against the prior beliefs of the individual and is therefore in nature a wrong thing to do. Deontologists will argue that the practitioner has a duty to uphold the autonomy of the patient, even if the eventual outcome may be bad for the patient. The reader must bear in mind that this view could contradict another ethical principle that being to do no harm (Non-Maleficence). Utilitarianism though will look at what is in the best interest for the wider society as a whole. To place in context, this patient may have MRSA so will need to be isolated from the rest of the ward to protect the general well-being of the other patients.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Please note with the above the law only requires the practitioner to act in the best interests of the patient, although there is a statutory duty for practitioners to consult with family and carers via the Mental Capacity Act (2005).

Ethics can indeed be a powerful weapon in the armoury of health related decision making. Read the following case study: 100 patients (annually) over the age of 75 in Strumpton NHS Trust require hip operations at £5,000 per operation. The total bill comes to £500,000. A state of the art orthopaedic theatre is proposed which will cost the trust £1,000,000. However the maternity unit is struggling due to a lack of midwives. Employing an extra 3 midwives will help with the overall running of the department and will allow women from the local area to receive maternity care nearer to home instead of having to travel 15 miles to the next town. There is also some evidence to suggest that this will help reduce infant mortality rates. The number of live births per year is 250. The total bill for 5 years of extra midwifery support is £600,000. Strumpton town has a population of 100,000, of which 75% are over the age of 30. Ethically there is a case for priorities to be directed toward the hip operations. The area has an increasing elderly population, and the hospital could argue from a deontological angle that there is a duty placed upon the hospital to look after the elderly population, and cost issues relating to maternity services should not be a deciding factor in order for the hospital in carrying out its duty. However a utilitarian approach will be to look at the long term benefits that a younger population provide to society. By investing in the maternity department might help to reduce infant mortality, and the better care afforded to women due to the increase in staff numbers might encourage more women to have more than one child. There is also a future cost implication – increasing live births will increase in time the number of young people in Strumpton, most of whom will be paying local and national taxes. The older people will become increasingly an expensive resource upon the community, and there is no guarantee’s that the hip operations will provide much long term benefit, although the reader needs to bear in mind that there may be a general perception by the over 75’s that there is an ethical right to healthcare, after all they have paid taxes for most of their life. The hospital though has limited resources and will need to decide which department to favour – in most cases it will weigh up the benefits and risks with each proposal, and may decide to compromise – for example it may limit hip operations to 80 per year and invest in only 2 midwives for the maternity department. But it needs to defend its decision that by doing so it is carrying out its duty fairly and equitably (Justice) to all concerned parties.

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Politics & Healthcare

This section will explore the role of politics and its influence upon healthcare decision making. Politics can be at a national or local level. Macro politics involves political decisions being made at a national level, for example, statutes passed at Westminster. Micro politics involves decisions being made at a more local level, for example by laws passed by the community/parish council or a community group fighting to save the closure of a school. Sometimes there is a clear overlap between the macro and micro levels of power. For example Westminster decides to cut the overall budget for Wales from 10 billion pounds to 7 billion pounds. The Welsh Assembly uses 20% of the budget to fund healthcare – thus instead of spending 2 billion pounds on health, in the new settlement the Assembly will only be able to spend 1.4 billion pounds on health. The money passed from the Assembly to the health boards is significantly less than previous (30% reduction), thus the health board may have to consider closing a hospital or cutting front-line services. Politics therefore affects all strata of our personal and professional lives. By having an awareness of your local representatives at both a macro and micro level can be essential if you have a desire to influence policy decision making or you wish to campaign for a particular issue. Below is a simplified structure of the various people who are elected on our behalf to make decisions affecting our communities: MP – Member of Parliament – can influence decisions made at a macro level. Represents a constituency and will sit in the House of Commons. MEP – Member of the European Parliament – represents a region at the European level. AM – Assembly Member – represents a constituency or a region of Wales within the National Assembly for Wales. County/Borough Councillor – Represents a ‘ward’ at local council level. Community Councillor – represents a community - limited powers, however often has contact with County/Borough Councillors. Community Councillors can also help with local environmental issues and smaller scale projects/ Residents Associations – no statutory powers however can influence or provide advice to elected officials.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) In healthcare we have organisations that represent us at a local and national level – For example the RCN, Unison, BMA. Doctors and Nurses are also represented at trust board level via the Director of Medicine/Nursing – She/he reports to the Chief Medical/Nursing Officer for Wales.

Politics can be very controversial. A nurse is complaining of poor standards of patient care. The trust is ignoring her concerns – What can she do? The Public Interest Disclosure Act (1998) protects workers who 'blow the whistle' about wrongdoing. The nurse in this instance should raise concerns with her local elected representative such as an AM or MP. Only if she feels no action is being taken should she consider contacting the media. The media can be an effective channel to air grievances – most organisations (and public officials) take note of adverse publicity.

Exercise: the local rehabilitation centre for people who have been in long-term care is being closed. This will result in a loss of 30 beds. 8 nurses on a combined annual salary of £160,000 will be lost, although most staff will be redeployed. The patients in the unit will be transferred to community care or to mainstream medical wards at the local hospital. The reason for closure is a lack of money available at the health board. However the health board has recently advertised a post for an ‘Equalities Officer’ paying an annual salary of £70,000. There is also a post for two administrators to assist the Equalities Officer both of whom will be on £14,000 each. How would you oppose the closure? Think about how you would utilise the services of your local elected representatives? If you were the health board how would you defend the closure of the local rehabilitation centre?

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Other legal Principles and cases

Doctrine of Necessity

Under this doctrine, doctors and other HCP’s will be entitled to take appropriate action if that action is necessary to prevent harm to the patient, or to promote life. This doctrine is particularly relevant for patients who lack mental capacity. In the case of Re A (Children) (Conjoined twins, surgical separation) [2000] EWCA Civ 254 doctors were allowed to separate conjoined twins against the wishes of the parents, on the basis that it was necessary to save the life of one of the twins. (Both babies would otherwise have died). However the defence of necessity has to be justified and appropriate. In the case of R v Dudley & Stevens [1884] 14 QBD 273 DC the judge stated that the ‘the murder of a cabin boy for the purpose to eat him (the defendants were survivors of a shipwreck who had been without food and water for several days) amounted to murder and the defence of necessity can never be accepted as a defence for murder. Likewise a doctor could not kill his patients and claim he was doing this out of necessity to prevent the suffering of his patients.

Going against approved medical practice

In Clark v MacLennan [1983] 1 All ER 416 a doctor who decided to operate to relieve stress incontinence of a mother one month after the birth of her baby was going against the normal practice of only undertaking the operation three months after birth. The defendant’s departure from general practice had not been justified and the claimant won her case, although in contrast in the case of Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635 the doctors could justify their reasons for not following approved practice and was held not guilty under the law of civil tort.

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Revision Questions

All the following questions refer to topics discussed within the resource book.

Name two sources of law (2 marks) --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------In October 2009 which court took over the appellate court of the House of Lords? (1 mark) -------------------------------------------------------------------------------------------------------------------------------------True or False: Professional Codes of Conduct can be used as evidence for and against your practice in a court of law. (1 mark) ----------------------------What three things does a person need to demonstrate to show that negligence has occurred? (3 marks) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Why can you not use, as a healthcare professional, a lack of experience as a defence in law? Use case law to support your answer. (5 marks) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------What is the key difference between the cases of Saunders v. Leeds Western Health Authority and McLennan v. Newcastle Health Authority? (5 marks) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------92


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What is the four stage test of capacity? (4 marks) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Advanced decisions can be used for what purpose? (5 marks) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Name two professionals recognised via the Mental Health Act (1983 & 2007). (2 marks) --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------What section is used under the Mental Health Act to detain a person for assessment purposes, and for how long can they be detained for? (4 marks) -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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Introduction to Law and Ethics (Iwan Dowie, July 2012) What are holding powers and who can use them? (4 marks) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

What article of the Human Rights Act (1998) protects confidentiality? (1 mark) -------------------------------------------------------------------------------------------------------------------------------------Up to how many weeks can you legally abort a foetus? (1 mark) -------------------------------------------------------------------------------------------------------------------------------------Do fathers have a legal right to prevent an abortion? Give reasons for your answer using relevant case law for support. (5 marks) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------What is meta-ethics? (3 marks) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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What is meant by autonomy? (2 marks) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------What are the differences between utilitarian approaches to a deontological approach? (4 marks) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------True or False: Britain has a written constitution. (1 mark) -------------------------------------Deprivation of Liberty Safeguards was incorporated into the Mental Capacity Act via which Act of Parliament? (1 mark) -------------------------------------------------------------------------------------------------------------------------------------How many assessments are required to deprive a person of their liberty and what are they? (7 marks) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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Under the Equality Act (2010) what is meant by discrimination by association? (4 marks) --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------What is meant by the ‘Gillick’ competent child? (4 marks) -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------What is the main Act of Parliament concerned with child protection? (2 marks) --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------Which healthcare professionals are responsible for child protection? (2 marks) ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------True or False: There is a proscribed legal definition of death under UK law. (1 mark) -------------------------------------------

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Introduction to Law and Ethics (Iwan Dowie, July 2012) What is the difference between active euthanasia and passive euthanasia? (3 marks) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------What is meant by the legal term volenti non fit injuria? (3 marks) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

What is meant by the legal term res ipsa loquitur? (3 marks) ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

What is the key difference between mens rea and actus reus? (3 marks) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

How does the case of Chester v Afshar [2004] alter the ruling made in Sidaway v Bethlem Royal Hospital [1985]? (4 marks) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

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The Welsh Assembly Government (WAG) changed its name in May 2011. What is the new name for WAG? (2 marks) -------------------------------------------------------------------------------------------------------------------------------------Which statute law protects employees who ‘whistle blow’? (2 marks) ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

What is the difference between the terms macro and micro politics? (4 marks) -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Which legal case supports healthcare professionals who go against approved medical/healthcare practice, as long as they can justify the rationale for doing so? (2 marks) -----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Your score (out of 100) =

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Hopefully this resource book has been helpful in assisting you with your studies for lecture and tutorial work. If you have any further questions or queries do not hesitate to ask one of the module team members.

YOUR NOTES:

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Introduction to the Concepts of Care & Support & their Application to Practice – Holism, Holistic Assessment, Respecting Diversity, Individual Preferences and Differences.

In this section we will explore what is meant by holism and holistic assessment. We will also examine diversity, and the right for clients to express their individual preferences and differences, sometimes with the support of health and social care staff. Please complete all the tasks contained within this section. If you need support please contact your personal tutor/supervisor who will be able to help you complete this section.

For this section you need to meet the following learning objectives:

Define holism, and holistic assessment Examine equality and why it is important for health and social care students/workers to treat people equally Describe multi-Culturalism Explore why we need to act as advocates for clients.

Part 1 - Holism

TASK 1 – What do you think is meant by the term holism? Write down your thoughts in the box below:

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According to Oshry (2008) holism is from the Greek word holos which simply means looking at the whole situation rather than looking at just a part. In health and Social care it is sometimes difficult to look at the ‘whole situation’. Often we only look at the problem that we can immediately see. Read the following example:

Mary is 79 and living in a residential home. Mary has a very chesty cough; however Mary also smokes 20 cigarettes a day. What advice would you give to Mary?

Most people would probably think that Mary should give up smoking as this will help her cough. However Mary might become very depressed if she did not have her cigarettes. If you were examining her holistically you would have to take into consideration the psychological impact smoking has on Mary’s life. In other words, whilst we know that Mary may be physically healthier by not smoking, her mental health could suffer. This is why it is very important for staff to sit with Mary and discuss her options – maybe it would be better to try and gradually reduce her smoking to a level which would be acceptable to Mary and the same time help her with her cough.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) We also want to ensure that we treat Mary as an individual. Immanuel Kant (1724 – 1804) was a Prussian philosopher whom said that ‘every person must be treated as an end in himself, rather than a means to an end. In other words a person has the right to be able to make a decision on their own behalf, regardless or not if the decision goes against the advice of a health and social care practitioner.

Holistic Assessment

This simply means assessing the ‘whole person’, once again assessing their physical, psychological and spiritual needs.

TASK 2 - If a new resident was coming to stay in your care centre, make a list of the sort of questions would you ask him/her to make sure all his needs will be met whilst he/she stays with you?

Hopefully your list of questions will include some of the following:

What health problems do you suffer with? What medications do you take? What food do you like? Are there any dislikes?

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Introduction to Law and Ethics (Iwan Dowie, July 2012) Do you need help with personal hygiene and toileting? Do you sometimes feel worried or anxious? Are you able to walk without assistance or do you need some help? Do you sleep well? What is your first language? Are you hard of hearing or do you wear glasses? What belief (if any) do you have? Do you like socialising?

You may have come up with a few more. Questions such as these allow us to see the person as a ‘whole’, rather than focussing upon an aspect of their illness or disability.

Part 2 - Equality

Equality

As well as looking at the person holistically we also have to ensure we treat people with equity which means we do not discriminate against people because of their race, colour, gender, disability, sexual orientation, and age. There are laws we have to follow to make sure we treat people fairly. The main law which protects equality is the Equality Act (2010).

The Equality Act brings together all existing anti-discrimination law into one all purpose Act. Examples of previous anti –discrimination laws include the Race Relations Act (1976), Disability Discrimination Act (1995) and the Employment Equality (Age) Regulations (2006).

The Government believes that despite various laws, discrimination is still taking place. The purpose of the Equality Act is to ensure discrimination is further reduced, and to provide an enhance protection for those people who have a disability or are part of a minority group.

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Key components of the act

The Equality Act (2010) will protect from discrimination people with the following ‘Protected Characteristics’:Age Disability Gender reassignment Race Religion or belief Sex Sexual orientation

Part 3 - Multi-Culturalism & Diversity

What do you think is meant by the term Multi-Culturalism?

Multi-Culturalism means you accept and appreciate that people have a different culture to your own, and that their culture is respected and valued (Parekh, 2000). There are various types of cultures – for example there is a European culture, an African culture, an Asian culture and many more. Sometimes sub cultures can exist – students for example have a subculture. Can you think of anymore?

Being part of a culture can be described as a system of shared ideas, concepts and rules which enable human beings to identify themselves to other human beings their uniqueness (Lister, 2012). Health and Social Care staff will meet people from a wide range of backgrounds (which is often referred to as diversity), and it is important to respect their culture and beliefs. Read the following case study:-

Ahmed is a Muslim. He likes listening to religious tapes, and he is often very vocal about his opposition to the conflict in Afghanistan and Iraq. Lucy who is a senior carer taunts Ahmed by saying to him he is a “supporter of terrorism and he should be ashamed of himself”. She also says that “Britain is a Christian country and if he does not like it here he needs to go back home”.

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Introduction to Law and Ethics (Iwan Dowie, July 2012) TASK 3 – Having read the case study do you agree or disagree with Lucy?

Hopefully you will have disagreed with Lucy and her views. Lucy is assuming Ahmed is a’ terrorist’ because he is a Muslim and his opposition to the war in Afghanistan and Iraq. However being against a war does not equal to supporting terrorism, and the vast majority of Muslim people are strongly opposed to acts of terrorism. Likewise Lucy is assuming Britain is a ‘Christian country’ which signifies a lack of understanding that Britain is home to people of many faiths and cultures. She also tells him “to go back home” however Ahmed’s home is in Britain, irrespective of his original place of birth.

Lucy above was perhaps stereotyping Ahmed. According to Nolen-Hoekseam et al (2009) stereotypes can reinforce culture in both a negative and positive way! In reality people will have differing values and norms and culture and yet live in the same street!

Ethnicity continues to be an important factor in how people respond to a culture – in Ahmed’s situation he is a Muslim but he also has Asian origins. Lucy on the other hand has a perception of Muslim people being ‘for terrorism’. Would Lucy react differently if a Christian white person had spoken against the war? Many Christians share the same view Ahmed expresses despite having a different belief! Lucy maybe taking her ‘ideas’ from the media, or from her friends - so it is important for health and social care workers to think very carefully in how they would respond to news articles or ‘off the cuff’ comments made by other people.

Below are some useful tips to follow to ensure we as health and social care workers are being aware of ethnicity and culture:-

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Do

Be aware of your own cultural beliefs and biases Be open to learning more about other’s & respect others Practice engaging in cross-cultural communication (even if you find it difficult) Listen actively & clarify Be aware of non verbal signs

Do Not

Stereotype Assume there is only one language (yours) Assume that any breakdowns in communication are due to others Assume all cultures are similar to yours.

TASK 4 -

Do you have any biases towards certain cultures? These can be positive or negative biases. Why do you feel that way towards those cultures – for example you might not like the ‘pub culture’ why is that? Does this dislike influence the way you would deal with a client who has an alcohol problem?

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Part 4 – Advocacy

Sometimes we need to support people to make choices even though they may not be able to speak up for themselves (Jansson, 2011) – this is referred to as advocacy. This is related to holistic care as we need to ensure all their needs are met as we are often best placed to do this by ensuring our clients have a voice by us advocating on their behalf. Remember advocacy is about representing the client’s view which may not necessarily be your own views.

Below are the different types of advocacy you may encounter or use as a health and social care worker:-

 

 

Legal Advocacy – Solicitor/barrister/Legal Executives who speak on their client’s behalf in a court of law or in a formal meeting such as an employment tribunal. Citizen Advocacy – this is a long term, one to one partnership between a user and an advocate usually as part of a co-ordinated scheme with paid co-ordinator and volunteer partners. This is more common in the learning disability field of practice and in the mental health field of practice, however the two can overlap. Formal Advocacy – this usually refers to schemes run by voluntary groups which are not by and large user led. These schemes sometimes refer to them selves as professional advocates. Co-ordinators are salaried and often advocates are paid. They tend to adopt an expert model advocacy which involves the giving advice, prioritising options, counselling and mediation. They often act for both carers and service users. Peer Advocacy – this is support from advocates who themselves use or have used mental health/social care services or have been in a similar situation themselves – for example there are many health blogs on the internet which will support people with a specific condition (for example HIV). Self Advocacy – this involves people speaking out for themselves which is the express goal of many citizens or peer advocacy projects. Implied Advocacy – here there is an assumption made that a person who is paid to do a particular role will also advocate as and when required – for example a nurse is expected to advocate on behalf of her patient if she notices that something is happening to the patient that could be detrimental (against) the patient’s best interest.

There are some challenges in becoming an advocate – see if you can think of any for yourself take a look at the list below:-

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Introduction to Law and Ethics (Iwan Dowie, July 2012)        

You might be labelled a trouble maker. You may be ostracised. You might impose your views onto the patient/client or members of the Multi Disciplinary Team. Might have to work outside the role. Lack of resources. Lack of experience may make you feel nervous, scared or inadequate to be an effective advocate. Conflict with relatives and patient. The patient/client can become dependent upon the advocate.

TASK 5 – Read the following case study – How would you advocate for Lucy?

Brenda is a carer for Lucy. Lucy has severe learning difficulties. Lucy loves hamburgers. On a visit to town Brenda takes Lucy to BigBurger, an American themed restaurant. However when Brenda takes Lucy into the restaurant she notices that many people (customers) appear uncomfortable with Lucy being there. A few walk out from the restaurant. Nigel the manager comes over to Brenda, and asks if Brenda and Lucy could leave as its affecting business. Rhona, a regular customer also comes over and states very loudly that Lucy and her condition is making her feel sick and she cannot enjoy her meal.

Write your answer in the box below:

You can in the first instance explain to Nigel how important this trip means to Lucy, and to suggest to Nigel that his ‘acceptance’ of Lucy will boost business. If Nigel still refuses you can suggest that he may experience some unwelcome publicity as you will report his behaviour to the local press. (This will often do the trick as most businesses do not like bad publicity). If all else fails you can seek legal

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Introduction to Law and Ethics (Iwan Dowie, July 2012) advice as Nigel is potentially acting against the Equality Act – speaking to the Citizens Advice Bureaux will help in finding the appropriate legal practitioners.

TASK 6 – Read the case study and answer the question that follows

You are disabled, overweight and wheelchair bound – you need a lot of assistance. You wish to board a bus into town. However the bus company refuses to let you board as the bus driver cannot physically help you onto the bus sue to your size and weight.

How can you self advocate this situation? There are no answers to this task as hopefully by now you will know the answer!

Summary of Section

Now that you have completed this section you will understand the importance of assessing a person holistically, which encompasses their cultural, physical and psychological needs. Sometimes people cannot speak up for themselves and we need to help by ensuring their voice is heard. We have also been introduced in this unit to the Equality Act (2010), which provides some legal safeguards against discrimination, yet provides a legal obligation upon us all to make sure that when we are assessing our clients that we are doing so fairly and with their best interests in mind.

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References

HMSO (2010) Equality Act, Her Majesty’s Stationary Office, London.

Jansson B. S (2011) Improving Healthcare through Advocacy: A guide for the health and helping professions, John Wiley & Sons Inc, Hoboken, New Jersey.

Lister P.G (2012) Integrating Social Work Theory & Practice, Routledge, Abingdon.

Nolen-Hoekseam S, Fredrickson B.L, Loftus G.R, Wagenaar W.A (2009) Atkinson & Hilgard’s Introduction to Psychology, 15th Ed, Wadsworth Cengage Learning, Andover. Oshry B (2008) Seeing Systems: Unlocking the Mysteries of Organizational Life, Berrett-Koehler Publishers. Parekh B (2000) Rethinking Multiculturalism: cultural diversity and political theory, McMillan Press, London.

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Reflection upon a Significant Incident/Event

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CERTIFICATION OF COMPLETION

Name of Student:

I hereby certify that the above named student has successfully completed this workbook

Signed

Module Tutor

Date

Please place this certificate into your portfolio.

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Author: Iwan Dowie – Senior Lecturer, Faculty of Health Sport & Science, University of Glamorgan.

Module members: This following list details the names of the key lecturing staff involved in the delivery of law, ethics and professional issues in the Faculty of Health, Education, Psychology & Sport. This list is not meant to be exhaustive. Iwan Dowie (Personal & Professional (Adult Nursing), Medical Sciences, Law Ethics & Nurse Prescribing – SCPHN practitioners and District/Practice Nursing) iwan.dowie@southwales.ac.uk Sian Jones (Personal & Professional (Adult Nursing), Medical Sciences, Law Ethics and Philosophy) sian.jones@southwales.ac.uk Mark Davies (Personal & Professional (Adult Nursing), Medical Sciences, Law Ethics and Philosophy) mark.davies1@southwales.ac.uk Owena Simpson (Personal & Professional (Adult Nursing)) owena.simpson@southwales.ac.uk Cheryl Phillips (Personal & Professional (Adult Nursing)) cheryl.phillips@southwales.ac.uk Bridie Jones (Personal & Professional (Adult Nursing), Medical Sciences) bridie.jones@southwales.ac.uk Maria Parry (Personal & Professional (Adult Nursing)) maria.parry@southwales.ac.uk Andrew Davies (Personal & Professional (Adult Nursing), Medical Sciences) andrew.davies2@wales.nhs.uk Jacquie Corbett (Law Ethics & Nurse Prescribing – SCPHN practitioners and District/Practice Nursing) Jacquie.corbett@southwales.ac.uk Gary Houlihan (Mental Health Law) gary.houlihan@southwales.ac.uk Nigel Downes (Personal & Professional (Adult Nursing & CFP)) nigel.downes@southwales.ac.uk Andrew Parry (Personal & Professional (Adult Nursing) andy.parry@southwales.ac.uk

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