Health Records and Information Privacy Act 2002 - Assignment Example

1.Assume Alice has been diagnosed with late stage breast cancer. Can she bring a claim in negligence against Vijay for not advising her to get tested? (assume that Vijay had the power to do so under Health Records and Information Privacy Act 2002 (NSW) The Health Records and Information Privacy Act 2002 (NSW) controls the gathering and handling of clients’ information by NSW private and public organisation. The Act applies to all organisations that provide health services or hold, collect or utilise health information. According to Casanelia and Stelfox (2006, p.111), the Privacy Act of 1988 was amended to cover comprehensive privacy law for public and private organisations that include health service providers in Australia. The Act offers privacy protection for clients besides providing scope for health professionals to share information. The New South Wales and Victoria are the only states that hold a detailed data protection regime. The NSW passed the Health Records and Information Privacy Act in 2002. This Act establishes standards for handling health information. This Act describes Health Privacy Principles (HPPs) that are akin to those of the Commonwealth’s Privacy Act. It states that a health professional must keep a client’s information for a period of no less than 7 years after the last occasion on which a client received health service. When a client is under 18 years, his/her health information should be well kept until the client is 25 years (Casanelia & Stelfox (2006, p.111). The HRIP Act functions to safeguard the privacy of client’s health information. The Act attains this objective by requiring health care providers to comply with fifteen HPPs (Health Privacy Principles). One of the key principles that health care providers must adhere to is ‘limited’ that dictates that health care providers should use the collected health information for the purpose for which it was gathered or directly linked purpose that the client would expect. The information should only be disclosed for purpose for which it was gathered or directly linked purpose that the client would expect. With regard to the case, Alice can claim for negligence against Mr. Vijay for not advising her to get tested as soon as he found out Caroline, her sister, had a breast cancer caused by the BRCA1 gene. The fact that Caroline confirmed that she could not speak to her sister about the cancer-causing gene that she was exposed to, Mr.Vijay should have taken upon himself to disclose that information to Alice. According to HPPs (10) 1 (B) and 11(1) (b), a health care provider can disclose health information without the consent of the client where there is a directly related secondary purpose that is within the reasonable expectations of the client. Additionally, HPP 10 (1) (c) and 11 (c) allows health care providers to disclose health information devoid of the consent of the client to prevent or lessen an imminent or serious threat to the safety and health of any person or a serious threat to public safety or public health. On compassionate grounds, Mr. Vijay was obliged to disclose Caroline’s health information without consent to Alice who is an immediate family member to Caroline. Through Caroline’s health information, Mr. Vijay had the right and duty to advise Alice to get tested. Vijay being a cancer specialist knew that Caroline’s female siblings were at risk of breast cancer. In this perspective, had Mr. Vijay advised Alice to get tested as soon as he realised that Caroline had the BRCA1, Alice’s condition would not have deteriorated and reached the last stage. Vijay would have saved Alice and prevented the Cancer from developing to the last stage. Mr. Vijay determined that Caroline’s sibling needed to be informed about the exposure to a cancer gene but he failed to notify and test her. 2. Would the abortion proposed by Vijay be legal? In New South Wales, abortion is illegal under sections 82-84 of the 1900 Crimes Act. Currently, abortion is punishable by law and can take up to ten years of imprisonment. The illegal supply of any drug or any instrument meant for procuring abortion is punishable by law in New South Wales Crime Act. However, therapeutic abortion is termed as legal in NSW. In R v Bourne [1938] 3 All ER 615 A case, Judge Macnaghten stated that in some circumstances, an abortion could be legal (Rowlands 2014, p.237). In this case, the judge stressed that if an abortion is done to save the life of the pregnant woman, then it should not be termed as unlawful. In addition, if there are reasonable grounds that a pregnancy can jeopardise the mental or physical health of a woman, then such an abortion should be termed as legal. Under the Crimes Act, unlawful abortion is prohibited, but the law offers a specific provision for therapeutic abortion. In Rv. Davidson (1969) VR 667, Davidson was charged under section 65 of the 1958 Crimes Act with performing an illegal abortion (Rowlands 2014, p.237). . The judge ruled that abortion was lawful if the accused candidly believed on reasonable grounds that abortion was necessary to save the pregnant woman from serious risk to her life or her mental or physical health (Rowlands 2014, p.237). In New South Wales, a legal abortion is termed as a clinical decision made by a doctor acting bona fides if the risk of maintaining a pregnancy surpasses the risks of having an abortion (Kennedy 2010, p.268). More so, a woman can procure an abortion for a pregnancy that has not surpassed 24 weeks. However, the pregnancy must pose risk of mental or physical injury to the woman. According to Kennedy (2010, p.268), abortion is legal if it is necessary to prevent serious permanent injury to the health and life of the pregnant woman. Drawing from these valid reasons, the abortion proposed by Mr. Vijay is legal. Firstly, the pregnancy has not exceeded 24 weeks. Secondly, keeping the pregnancy and performing C-section on Caroline would cause severe damages or even death to her. Although there is substantial risk to serious handicap to the unborn child that is caused by the cancer treatment, this is not a reason enough to procure abortion in NSW, but in Victoria, the reason is feasible. In this regard, there are valid legal reasons that support the proposed abortion. According to McLean and Elliston (2013, p.146), in NSW, West Australia and Victoria, abortion regulation is underpinned with different prohibitions and restrictions after the first trimester. However, none of the abortion regime involves a separate ground for foetal abnormality. The legality of an abortion is based on medical assessments of a woman’s social, psychological or physical circumstances. 3. Would it be legal to keep Caroline on life support for the purpose of ensuring the survivability of the foetus? Nelson and Trussler (2014, p.8) asserts that in 2013, foetal rights bill was passed by the lower house of the New South Wales. The Crimes Amendment bill otherwise referred to as the Zoe’s Law sought to give personhood to a foetus (Nelson & Trussler 2014, p.8). This bill sought to acknowledge destruction or harm of foetuses as an independent offence. According to Nelson and Trussler (2014, p.8), Zoe’s Law is an example of a fetal personhood law where the foetus is considered to be a person and harming it would trigger a criminal sentence. The bill proposed by Chris Spence defined a 20 weeks old foetus as an unborn child taken to be a living being. The bill recognises the separate subsistence of the foetus that holds a body mass of 400 grams and twenty weeks gestation (Nelson & Trussler 2014, p.8). Although the bill was passed in the lower parliament, it was rejected in the upper house. The passage of the bill was delayed because of the concerns of the effects it has on the rights of the mother. The Bill lapsed in the Upper house (Nelson & Trussler 2014, p.8). Drawing on the rejection of Zoe’s Law, the foetus holds no separate rights, hence it survival depends on the mother. The proposed bill did not only jeopardise the rights of pregnant women, but also the willingness of medical practitioners to offer medical care to pregnant mothers. In this regard, it would be illegal to keep Caroline on life support for the purpose of ensuring the survivability of the foetus given that the foetus has not separate rights from those of its mother. However, with respect to 1900 Crimes Act sections 83 it would be illegal to remove life support machine, as this would amount to abortion. Section 83 indicated that, “ Whosoever unlawfully administers, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in such cases to procure her miscarriage, shall be liable to penal servitude for ten years ( McLean & Elliston 2013, p.132). Removing life support machine would trigger abortion, which is illegal in NSW. This would create serious legal implications for the medical practitioners involved. Moreover, it would be legal to keep Caroline on life support to sustain the survivability of the foetus because she did not consent to abortion. In fact, Caroline decided to keep the baby and her husband is also concerned with the baby. Caroline and Peter demonstrate the desire of keeping the baby. Apparently, every human being has a right to decide what should be done with his/her own body. The patient is the final arbiter of whatever procedure or treatment should be done on her body. She/he or close family members must give consent to any procedures carried out on their bodies. Caroline and Peter have not expressed any concern relating to not keeping the pregnancy in whatever state it is. Although abortion is illegal in NSW, with consent from the patient or her family to remove life support, it would be unethical to keep the patient on life support to promote the survival of the foetus. For instance, in Texas, a family of a 33-year-old pregnant woman who, Marliese Munoz, was declared clinically dead sued the hospital for keeping their relative on life support machine for survivability of the foetus (Post & Blustein 2015, p.1). The court ruled in favour of the family, where the hospital was required to comply with Mr. Munoz’s instructions to remove life support. The rights of a patient in a vegetative state to refuse life support can be exercised by close family members. In this regard, Peter did not demonstrate any will to let his unborn child die. Therefore, it is legal to keep Caroline on life support for the purpose of ensuring foetus survivability. Remember that Mr Vijay was not a hundred percent sure that the treatment he administered to Caroline was indeed harmful to the foetus. More so, Dr. Susan believed that the it would be possible to keep Caroline on life support until twenty-four weeks’ gestation. 4. If the child was born via this method and suffered severe disabilities would it be able to sue Susan for allowing it to be born? Abortion law is a field of much uncertainty and confusion. A common law perspective is taken in Queensland and New South Wales where unlawful abortion is a crime. The common law clarifies when an abortion is legal. In NSW, when a doctor believes on reasonable grounds that there are mental or physical factors which hold the ability to put at risk the health of a pregnant woman, termination of pregnancy is legal. According to Farrell et al. (2014, p.177), abortion is a criminal offence in NSW. However, the courts have recognised a defence of necessity where the pregnancy poses a grave danger to the mental and physical health of the women. The R v. Wald (1971 3 DCR (NSW) 25 represents the law on abortion in New South Wales (Farrell et al. 2014, p.177). This case involved a trial of five medical practitioners charged under section 83 of the 1900 Crimes Act (Farrell et al. 2014, p.177). In this case, the judged drew on the earlier R v. Davidson (1969), a Victorian case in formulating the test of legality. He extended the reasons justifying abortion to include social and economic factors. Evidently, the birth of a disabled child is often viewed as nothing but a tragedy for the child and family. Focusing on social factors, the decision to terminate pregnancy can be presented as in the best interests of the child. While bringing a disabled child into the world remains a choice, it is a selfish action would cause suffering. Drawing on R v. Wald (1971 3 DCR (NSW) 25 case, and the case of Caroline, the child can sue Dr. Susan for allowing it to be born if it was born in Queensland or Victoria where foetal abnormality is legally used as a ground to procure an abortion. The child can sue Susan for wrongful life. According to McLean (2014, p.368), late term abortions are rare in Victoria and are usually performed following diagnosis of foetal abnormality. Unlike other states in Australia, Termination of pregnancy in NSW is a tricky endeavour because the state criminalises abortion. However, most doctors draw from the NSW health guidelines that put into consideration the physical and mental condition of the pregnant woman, the gestational age, the diagnostic probability and prognosis of the foetus in cases of birth defects. In France, the Court of Appeal allows children born disabled to sue doctors for not having detected their disabilities while in the womb (Owen & Griffiths 2009, p.8. There has been one successful lawsuit in Canada where a medical practitioner was order to pay 325, 000 dollars to a couple for the distress and expense of giving birth to a child with Down syndrome (Owen & Griffiths 2009, p.81). Although there are reasonable grounds for suing Dr. Susan for wrongful life, the1900 Crimes Acts Amendments mostly focuses on the health of the pregnant women as opposed to that of the unborn child. In NSW, abortion is legal if there is any social, medical or social ground upon which a medical practitioner can base a reasonable or an honest belief that an abortion is needed to prevent grave harm to the pregnant woman’s life or her mental or physical health. Foetal abnormality cannot solely form the basis for abortion in NSW. References Casanelia, L & Stelfox, D 2009, Foundations of massage, Australia, Elsevier. Farrel, A et al 2017, Health law, UK, Cambridge University. Kennedy, I 2010, Principles of medical law, UK, OUP Oxford. McLean, S & Elliston, S 2013, Regulation pre-implantation genetic diagnosis: A comparative and theoretical analysis, UK, Routledge. McLean, S 2016, First do no harm: Law, ethics and healthcare, UK, Routledge. Nelson, M & Trussler, M 2015, Fetal alcohol spectrum disorders in adults: Ethical and legal perspectives: An overview on FASD for professionals, UK, Springer. Owen, F & Griffiths, D 2008, Challenges to the human rights of people with intellectual disabilities, Australia, Jessica Kingsley Publishers. Post, L.F & Blustein, J 2015, Handbook for health care ethics committees, UK, JHU Press. Rowland, S 2014, Abortion care, UK, Cambridge University Press. Part B Should the obligation to inform of material risks associated with medical treatment extend to situations in which the treatment in question is to be withdrawn and the patient has expressed a clear wish to die? In Bridgewater Care Group Inc. v Rossiter (2009)1, the defendant (Rossiter) had the mental capability to make the decision of whether he wished to continue with the treatment. The medical practitioners were under obligation to inform him of the material risks associated with the discontinuation of the medical treatment for the patient had clearly expressed his wish to die. Therefore, Bridgewater Care Group Inc. did not fall under the category of ‘being in charge of’ Rossiter2. The patient in this case had the mental capability to make sound decisions. He was of sound mind to review and consider information given to him and thus the Judge’s decision that, Bridgewater Care Group Inc., had the obligation to carry out his wish without conflicting with the common law3. On the other hand, in Hunter and New England Health Services v A.4, the patient had made an advanced care directive presenting the conflicting issue of whether Hunter and New England Services fall under the category of being “in charge of the patient” considering the patient was admitted in the hospital when in an emergency condition. In the first week of treatment, where Mr. A. condition deteriorated and was kept alive by dialysis and mechanical ventilation treatment, Hunter and New England Services acted within the premise of Section 262 of the criminal code 5which imposes a duty of care to Hunter and New England Health Services to provide treatment to Mr A. based on the condition that he was in of not being in a position to withdraw himself from the treatment for he was brought to the hospital when ill. Hunter and New England Services was under statutory obligation to provide the treatment necessary to Mr. A. without deviating from the common law principle that an informed decision had been made via an advanced care directive that Mr. A. would refuse treatment. Hunter and New England Services did not breach any duty in the first week of treatment to Mr. A. for they were not aware of the advanced care directive. Mr. T., (Mr A’s Guardian) cannot claim that, Hunter and New England Services acted in contrary to Mr A’s wishes of not accepting dialysis treatment prior to Hunter and New England Services knowing of the advanced care directive. Section 262, would provide a strong defence on the basis of Hunter and New England Services, acting in charge of Mr A. who was in a critical condition6. However, the relief of the clause being in charge of under the circumstances of Mr A’s illness can be said to have been lifted by the knowledge of the existence of an advanced care directive to refuse treatment by Mr A., and Justice McDougall stating that, the advanced care directive issued by Mr A, was not doubtful and therefore valid and applicable. Ruling out that Hunter and New England Health Services had a legal obligation to provide treatment to Mr A. after knowing that there was an advanced care directive to refuse such treatment and uphold the autonomy of Mr A. as an adult to refuse treatment, the Judge was right to uphold that, Hunter and New England Health Services to act in accordance with the advanced care directive of A. If the advanced care directive would not have been presented when Mr. A’s case deteriorated, then the medical practitioners would have been under an obligation of informing the patient or the guardian of the material risks involved in such procedures as in the case of Bridgewater Care Group Inc. v Rossiter (2009). Upon presentation of the advanced care directive, administration of the treatment to Mr. A. was prohibited in order to uphold his self-determination as an adult with a sober mind. In Hunter and New England Health Services v A., on the issue of whether the medical practitioners were under a similar obligation as in Bridgewater Care Group Inc. v Rossiter (2009), to inform Mr A. of all the aspects and risks associated with any medical procedure at the time of or before seeking their consent to such a procedure was overruled by the existence of the advanced care directive and the appointment of Mr T. as the person in charge of making decisions for Mr A. in conditions where Mr A. would not manage to make such decisions. This shows that, Mr A. was well aware of his circumstances and therefore upholding his autonomy’s right was the rightful thing to do to the extent of overruling the interest of the states in its role of protecting citizens’ health. In this regard, Justice McDougall ruled that, even in Mr A’s condition of emergency, the advanced care directive should be followed, and therefore, Hunter and New England Health Services, were not obligated to inform the patient of material risks involved in refusing treatment for the existence of the advanced care directive should be followed even in situations when the patient is in an emergency case. This shows the diversions of the application of law and the convergence of the same principles of Law. In Bridgewater Care Group Inc. v Rossiter (2009), the patient was of sound mind and therefore able to make decisions on his behalf, while in, Hunter and New England Health Services v A.,at the time of admission, the patient could not make any sound decisions on his behalf, but the court had to rely on the principle that the patient had expressed his wish to refuse dialysis treatment. The convergence in law is shown when in both situations, the interpretation of the medical practitioners’ obligation to inform the patients of the material risks associated with refusing treatment is treated differently in both situations, and the autonomy of the patient’s wishes are upheld at the end of the rulings though in different circumstances. In Mr A. case, the medical providers were not in a similar obligation to provide information relating to the material risks associated with the treatment that was to be withdrawn from Mr. A. for Mr A. had appointed a guardian in the name of Mr T. This was done prior to Mr A. falling sick, he had visited a solicitor in July 2008 and to which, he gave Mr T. the full authority to act on his behalf and make any medical decisions that related to him should Mr A. be in a position where he could not make such decisions. In this case, there was no reason to doubt the advanced care directive that Mr A, had written a year earlier before he fell sick7. His actions before falling ill, shows that he was fully aware of the consequences of refusing treatment. Malett V. Shiulman et al 72 O. R. (2d) 4178, in matters regarding religious beliefs, the court ruled that, Shiulman had no right to bypass the consent expressed in the patient’s card that there should be no transfusion of blood. In this instance, the decision to refuse blood transfusion was purely based on religious beliefs of the patient. Therefore, Shiulman had no medical obligation to provide Malett with information regarding the material risks associated with refusing blood transfusion. When a decision to refuse treatment is made voluntary, whether based on religious beliefs like in the case of Jehovah witness followers9,the care providers are not obligated to inform the patients of the risks associated with the refusal of treatment bringing into focus the reason as to why in Bridgewater Care Group Inc v Rossiter (2009) and Hunter and New England Health Services v A, the courts embraced different interpretation of when medical practitioners are obligated to provide patients with information regarding materials risks associated with medical procedures at the time of or before seeking their consent to such procedures . In Mr. A’s case, judging from his religious beliefs, the decision to refuse dialysis treatment should be upheld upon presentation of the advanced care directive. In Schloendorff v Society of New York Hospital10, in 1994, it was also upheld that every individual has the autonomy in deciding what happens with his/her body contrary to which, if this right is violated, it is considered as an assault to the individual and the person is liable to pay for damages. In conclusion, it is clear that, what the law is interested in is the recognition of common law principles of, the authority of an adult on self-will to decide what happens to him/herself and the role of the states in doing what is right or wrong for its citizens in protecting them apart from in instances when administering treatment contrary to the patients’ belief is done to save the life of an unborn child. In such cases, advanced health care directive is overruled and also even if the individual is of sound mind to refuse treatment. However, in most cases and with the absence of saving the life of an unborn child, the autonomy of the individual prevails over what the states interests in an individual and the reason as to why, in as much as in the case of Bridgewater Care Group Inc v Rossiter (2009), Chief Justice Martin put the obligation of medical practitioners to provide patients with information of the risks associated with refusal of treatment. In Hunter and New England Health Services v A11, Justice McDougall ruled that medical practitioners were not in a similar obligation to provide the patient with information relating to the risks associated for there was the advanced care directive by the patient and thus it was to be adhered to. Autonomy in this case is a major factor considered when judging whether medical practitioners are under any obligation to patients. There are very few cases relating to the right to refuse medical treatment which have been decided upon and thus these two court decisions offer the much needed help on legal positions. The recognition of a written advance directive by the patient ought to be considered as being a valid expression of what the patient wishes and thus it should act as an assurance to the medical practitioners that it is appropriate and at the same time lawful to take note of and follow a directive so long as it is written in unambiguous and clear manner. When this is followed, in some cases, there is no need to consult the courts over such matters. Therefore, such cases Acts as precedence on what medical practitioners are obligated to do in such situations. This will also avoid the cases of patients suing doctors in cases where doctors feel the need to disregard the patients’ directive in emergency cases. The cases precedence shows that, as long as the patient is of sound mind, then, it is the duty of the medical practitioners to carry out his or her will for law recognizes the right of self will power, that, when individuals makes decisions regarding their bodies, it is adding value to themselves rather than devaluing their lives. Therefore, in as much as the obligation to inform of material risks associated with medical treatment should be extended to situations in which the treatment in question is to be withdrawn and the patient has expressed a clear wish to die, if the patient made the decision when of sound mind and not in unambiguous situations, his/her will should always prevail without necessarily providing details of the risks associated for when making the decision, the patient would be considered of sound mind and having the autonomy of what happens to him/herself. Books/Journals Lindy Willmott, ‘Advance Directives and the Promotion of Autonomy: A Comparative Australian Statutory Analysis’ (2010) 17 Journal of Law and Medicine 556, 556 Brightwater Care Group (Inc) v Rossiter (with Attorney General for WA Intervening) (No 2406 of 2009), Panetta McGrath Lawyers. 17th August, 2009. Cases Brightwater Care Group (Inc) v Rossiter [2009] WASC 229 (Unreported, Martin CJ, 14 August 2009. Hunter and New England Area Health Service v A [2009] NSWSC 761 (Unreported, McDougall J, 6 August 2009). Schloendorff v Society of New York Hospital (1914) 211 NY 125. Malett V. Shiulman et al 72 O. R. (2d) 417 Read More