In your future role as a health care professional you will be faced with complex and challenging situations. There will at times be a legal solution that can be applied to the situation and it is important that you are aware of what this might be so that you can confidently practice within these legal boundaries. Almost always there will be differing ethical positions that need to be considered. The purpose of this case study is to provide you with the skills to identify a legal issue, including the possible outcomes and consider why an ethical conflict arises.
The case study will assess all of the learning outcomes in 2972NRS. You have been provided with a contemporary health law case study. It is based on a real life situation and reflects some of the diverse and challenging issues that can arise within the provision of any health care service. You are required to identify and discuss the legal and ethical issues presented in this scenario.
You are expected to submit your case study with appropriate grammar, spelling, sentences, paragraphs and references. It should be structured using the following headings:
•Introduction
•Legal Issues
•Ethical Issues
•Conclusion
•References
Referencing: APA 6th Ed
Word Limit: 1500 words (excluding references)
Assignment Weight: 30%
Introduction
A short introductory paragraph that outlines what you will be presenting in your case report.
• You do not need to include a detailed account of the facts in the scenario; this will use up word unnecessarily and the markers are aware of the facts.
Legal Issues
Identify and discuss the legal issues raised by the facts in the case study. This requires you to:
• Consider the facts and identify the main legal issue
• Identify who could bring an action, and what type of action that would be
• Identify the elements that would need to be proved for the action to be successful
• Describe the standard of proof that would be required for the action to be successful, and who bears the burden of proof
• Describe any possible defences that could be raised, and who would raise them.
• Outline the possible outcomes could eventuate
Ethical Issues
Referring to the Universal Declaration on Bioethics and Human Rights:
• Identify the principles that are relevant
• Describe how the principles apply to the facts in the scenario
• Describe where a conflict may arise. This may be a conflict between two different principles, or a conflict between different parties involved in the scenario.
• Describe what steps might be required to address any conflict.
Conclusion
A short concluding paragraph that brings it all together.
CASE STUDY SCENARIO
Bruce is a 69 year old retired gentleman. He lives at home with his wife Betty, and together they have three adult children. Bruce is a Vietnam veteran, and as a consequence of his active duty during the war he has developed severe post-traumatic stress disorder and depression. He suffers with hypertension and hypercholesterolemia, but has repeatedly declined any treatment for any of these conditions. Bruce also has a lump on the right underside of his chin that is about the size of a golf ball. Bruce’s wife reports that this lump had been present for many months but despite the fact that it has turned into an open wound with an offensive exudate, Bruce had refuses to seek treatment for it.
In recent weeks Bruce has developed symptoms suggestive of an infective illness. He has complained of generalised malaise, muscle aches and pains and an elevated temperature with occasional rigors. Despite the best efforts of Betty and the children, Bruce has refused to seek medical attention for these symptoms even as his condition deteriorated.
Eventually Bruce became so weak and dehydrated that he was no longer able to refuse Betty’s efforts to have him see a doctor; with the assistance of their children Betty manoeuvred him into the car and took him to hospital. On admission to the hospital Bruce was noted to be hypotensive, tachycardic and febrile. His level of consciousness fluctuated, and was often only minimally responsive. Concerned that he may not be able to adequately protect his airway, Bruce was transferred to the high dependency unit where he could be closely monitored. Bruce was diagnosed with septicaemia resulting from the open wound under his chin.
After a series of investigations it was determined that the infected lump under Bruce’s chin was a malignant tumour. The team caring for Bruce formed the opinion that surgery to remove the tumour was the most appropriate course of action. The surgeon who was to perform the operation sought Bruce’s consent for the operation. Bruce’s fluctuating level of consciousness made this quite difficult, although in a moment of lucidity he clearly stated… “I don’t want any operations – I’d rather die”. Shortly after this, with Betty’s consent, the surgery went ahead, and the entire tumour was successfully removed. Bruce’s post-operative recovery was relatively uneventful and his sepsis resolved. However he was left with a very large and disfiguring scar and some ongoing difficulties with swallowing. When he was eventually discharged home, Bruce became increasingly angry that he had been operated on without his consent. Bruce now wishes to sue the surgeon who performed the operation.
Criteria Excellent
Very good
Sound
Poor
Very poor
Identifies and Discusses Relevant Legal Issues
40 marks 40-33 32-25 24-16 15-8 7-0
• Correctly identifies the main legal issue in the scenario.
• Correctly identifies who could bring an action and what type of action that would be.
• Correctly identifies all of the elements that need to be proved for the action to be successful.
• Correctly describes the standard of proof that would apply and who has the burden of proof.
• Correctly describes all possible defences that could be raised and who would raise them.
• Demonstrates an excellent understanding of possible outcomes that could eventuate.
• Identifies a relevant legal issue in the scenario
• Identifies who could bring an action and what type of action that would be.
• Identifies the elements that need to be proved for the action to be successful.
• Describes the standard of proof and who has the burden of proof.
• Describes any possible defences that could be raised and who would raise them.
• Demonstrates a good understanding of possible outcomes that could eventuate. • Attempts to identify a relevant legal issue in the scenario
• Attempts to identify who could bring an action and/or what type of action that would be
• Attempts to identify the elements that need to be proved.
• Attempts to describe the standard of proof
• Attempts to describe any possible defences that could be raised and who would raise them
• Demonstrates a sound understanding of the possible outcomes that could eventuate. • The report identifies an incorrect or irrelevant legal issue
• Incorrectly identifies who could bring an action and/or what type of action that would be.
• Incorrectly identifies the elements needed to be proved.
• Incorrectly describes the standard of proof
• Incorrectly describes any possible defences that could be raised and/or who would raise them.
• Demonstrates limited understanding of the possible outcomes that could eventuate. • The report does not identify a legal issue.
• Does not identify who could bring an action and/or what type of action that would be.
• Does not identify the elements that need to be proved.
• Does not describe the standard of proof.
• Does not describe any possible defences.
• Demonstrate very poor or no understanding of the possible outcomes that could eventuate.
Identifies and Discusses Relevant Ethical Issues
30 marks 30-25 24-19 18-12 11-6 5-0
• Using the Universal Declaration on Bioethics and Human Rights the report accurately identifies the relevant principles.
• Clearly describes how they apply to the facts of the scenario.
• Clearly describes where a conflict may arise and how it may be addressed. • The report accurately identifies most of the relevant principles and describes how they apply to the facts in the scenario.
• Describes where a conflict may arise and how it may be addressed • The report identifies some of the relevant principles and attempts to describe how they apply to the facts in the scenario.
• Attempt to describe where a conflict may arise and/or how it may be addressed • The report has made some attempt at identifying the relevant ethical principles.
• Minimal attempt at describing how they apply to the facts. Limited description of where a conflict may arise and/or how it may be addressed • The report fails to identify the relevant ethical principles. Limited or no discussion of why a conflict may arise
Academic Writing
15 marks 15-13 12-10 9-7 6-4 3-0
Clear, extremely well structured and written with few or no grammatical or spelling errors. Correct use of punctuation. Generally well structured and written with occasional grammatical or spelling errors. Mostly correct use of punctuation. Soundly structured, but writing is unclear in places with occasional grammatical or spelling errors. Punctuation needs attention Generally poorly structured and written. Many grammatical and/or spelling errors that detract from the flow of the report Very poorly written and structured. Frequent errors.
Research and Referencing
15 marks 15-13 12-10 9-7 6-4 3-0
Literature appropriate; Has mainly sourced a own literature; referencing correct Literature appropriate; used literature supplied in course and a few additionally sourced literature; minor referencing errors Literature mostly appropriate; Has used literature supplied in course; some referencing error Some literature cited; some attempt at referencing but several errors Minimal literature cited; minimal attempt at referencing with frequent errors
TOTAL
Tips for constructing the case study
Your case study should contain five separate sections.
1. Introduction
2. Legal Issues
3. Ethical Issues
4. Conclusion
5. References
Introduction
A short paragraph that directs the readers to what you will discuss in your report. You can introduce the main legal and ethical issues you are going to discuss.
It will also be important to identify the relevant stakeholders in the scenario that you have selected. Stakeholders could include:
Patients
Family members
Healthcare professionals
A particular group in society
Any others you consider relevant…
Having a clear idea of who the relevant stakeholders are will make it easier for you to discuss the legal and ethical issues.
Legal Issue
Begin by asking yourself, what controversy is present? This will help you to state the legal problem presented by the facts.
What law will apply? The law for the issue will require you to identify the elements that must be proved. Also consider:
Who bears the onus of proof
What the standard of proof is
What possible defences could be raised
What outcomes are possible.
Finally, after you have stated what the law is, don’t forget to apply the law to the particular facts in the scenario and reach a conclusion.
Identifies and Discusses Relevant Legal Issue
40 percent
Correctly identifies the main legal issue in the scenario.
Correctly identifies who could bring an action and what type of action that would be.
Correctly identifies all of the elements that need to be proved for the action to be successful.
Correctly describes the standard of proof that would apply and who has the burden of proof.
Correctly describes all possible defences that could be raised and who would raise them.
Demonstrates an excellent understanding of possible outcomes that could eventuate
Ethical Issues
Remember that ethical issues arise when there is a conflict of values. Consider the position of each of the relevant stakeholders to see where these conflict might arise
The Universal Declaration on Bioethics and Human Rights provides a sound framework for highlighting the principles that could be applied to the issue
The ethical decision making framework, discussed in the lecture (and tutorial) could be used to help address the conflict
Identifies and Discusses Relevant Ethical Issues
30 marks
Using the Universal Declaration on Bioethics and Human Rights the report accurately identifies the relevant principles.
Clearly describes how they apply to the facts of the scenario.
Clearly describes where a conflict may arise and how it may be addressed.
Conclusion
In bringing it all together, provide a brief summary of the legal and ethical issues that you have identified.
Any final conclusions that could be drawn, based on the information you have provided in the body of the report.
Follow the formatting guidelines in the School of Nursing and Midwifery Writing and Referencing Guide
Academic Writing
15 marks
Clear, extremely well structured and written with few or no grammatical or spelling errors. Correct use of punctuation.
Get someone else to proof read.
Get someone who does not know the subject to read it and provide feedback on clarity.
Research and Referencing
15 marks
Literature appropriate;
Has mainly sourced a own literature;
Referencing correct
https://sites.google.com/a/griffith.edu.au/nursing-writing-and-referencing-guide/apa-referencing-guidelines
What does that Mean?
There is help available…
Nursing and Midwifery Writing and Referencing Guide
https://sites.google.com/a/griffith.edu.au/nursing-writing-and-referencing-guide/home
EXAMPLE CASE STUDY
INTRODUCTION
Sterilisation procedures for intellectually disabled young girls, occupies a perplexing position in the Australian legal landscape (Naik, 2012a). Regulated rather than prohibited, procedures for consent of sterilisation are open to interpretation with conflicts arising between medical and legal outcomes across all states (Parker, 2013). Sterilisation, involves a permanent irreversible procedure rendering reproduction futile (Brady and Grover, 1997). This case study will identify legal issues including the notion of consent and ethical issues encompassing the Universal Declaration on Bioethics and Human Rights in the case of Re Angela [2010] 43 Fam LR 98. Key stakeholders will be identified including parents, medical practitioners, Queensland Health, Family Law Courts and Guardianship Tribunals to determine if breaches of human rights and the law have been made.
LEGAL ISSUES
Within Australia, consent is required prior to commencement of medical procedures (Brady and Grover, 1997). Consent can be implied, verbal or written, however it is only valid when given freely and voluntarily, having received information in broad terms and the person has legal capacity to make decisions specific to the procedure being undertaken (Forrester and Griffiths 2011). Following a seminal High Court decision in Secretary, Department of Health and Community Services (NT) v JWB and SMB (‘Marion’s Case’) (1992) 175 CLR 218, the notion of consent for minors is determined by satisfying one of three procedural pathways (Chapter 5A, Guardianship and Administrations Act, 2000). The first pathway identifies that children must satisfy the notion of comprehension and understanding referred to as Gillick competence (Naik, 2012a). Gillick competence is achieved when a child possesses the emotional and cognitive ability to make decisions autonomously regarding the sterilisation procedure and is subsequently able to provide informed consent prior to the commencement (Forrester and Griffiths, 2011).
In Re Angela (2010), Justice Cronin determined Angela was Gillick incompetent, therefore unable to provide valid consent for sterilisation given her emotional immaturity and inability to communicate resulting from her intellectual disability. Without Angela possessing Gillick competence, the proposed sterilisation procedure falls within the parental power to consent (Family Law Act, 1975 (Cth)), giving parents authority to act in the child’s benefit for therapeutic sterilisations (Marion’s Case, 1992). Therapeutic sterilisations are described where permanent infertility is a ‘by-product of surgery to treat malfunction or disease’ or ‘a result of surgery performed to cure a disease or correct some malfunction’ (Naik, 2012a). The Guardianship and Administrations Act 2000 (QLD) states that “sterilisation does not include health care” [s80B (2)], creating a division between therapeutic and non therapeutic procedures and the courts restriction of these terms.
Sterilisation procedures for menstrual management to treat epilepsy, are deemed non therapeutic, creating a legal issue in Re Angela, as the procedure falls outside parental powers of consent (Naik, 2012a). The removal of parental powers is further supported in P v P (1995) 126 FLR 245; 19 Fam LR 1 whereby the High Court reaffirmed the decision in Marion’s Case, confirming the child was not suffering from any malfunction or disease, therefore the treatment was outside parental power to consent and the decision rests with the court. Application to the Family Law Court (FCA) under Section 67ZC or the Queensland Civil and Administrative Tribunal (QCAT) is the final pathway for lawful sterilisation in the absence of Gillick competence or parental powers to consent. This provides the court with jurisdiction to make orders in relation to children’s welfare, when satisfied that the procedure is in the best interests of the child (Guardianship and Administrations Act 2000 (QLD) s.80C, s.80D).
In Re Angela the FCA approved the application for sterilisation upon satisfying the best interest test, with Justice Cronin acknowledging that “a fundamental consideration is….the risks to Angela’s life as well as her general well being”, and as a last resort given the exploration of all other available options as testified by her treating specialist (Re Angela, 2010).
APPLICABLE LAW
State legislation and common law govern sterilisation of intellectually disabled children (Brady and Grover, 1997). Without uniform legislation across all states, inconsistencies on how laws are interpreted and applied by medical and legal practitioners are present (Naik, 2012b). Western Australia, Northern Territory, Victoria and Australian Capital Territory are governed solely by common law in line with the seminal High Court decision in Marion’s Case, however in Queensland and the remaining states common law works simultaneously with state legislation (Naik, 2012c). When sterilisation procedures are unauthorised and without valid consent, surgical intervention, is an offence under both civil and criminal law (Naik, 2012a).
In the absence of valid consent civil law actions of trespass to person or criminal law actions of assault arise by either direct interference with another person or the intention to touch was present (Forrester and Griffiths, 2011). In accordance to Marion’s Case, sterilisations for menstrual management are non therapeutic, with the onus of proof resting with the plaintiff being Angela or her parents, on the balance of probabilities to cast doubt over the therapeutic nature of her sterilisation (Naik, 2012a). The defendants including medical practitioners and/or Queensland Health are at risk of committing an offence. If successful, financial penalties may arise due to the extent and irreversible nature of this procedure (Naik, 2012a).
Without being authorised, justified or excused under criminal law, a sterilisation procedure without consent is assault (Criminal Code 1899 (QLD) s.245, s.246). The burden of proof for assault rests with the prosecution, generally the State, to demonstrate that the defendant is guilty in front of a jury beyond reasonable doubt before a conviction is made (Forrester and Griffiths, 2011). Creating a situation where the medical practitioner acted bona fide but possibly contrary to the law, in addition to the parents involvement in procuring the sterilisation, creates an unlikely environment for proceedings under criminal assault (Naik, 2012c). Furthermore, outcomes of this nature are costly and highly unlikely (Naik, 2012c), with the defence arguing that the assault was authorised as ‘the health care should be carried out urgently to meet imminent risk to the patient’s life’ (Queensland Guardianship and Administration Act 2000 63 (1bii)), which is consistent with Justice Cronin’s judgement in Angela’s case.
ETHICAL CONFLICTS
What is the distinction between morally and ethically appropriate procedures and the law, when Angela has no capacity (Re Angela, 2010) and no voice to protect her human rights and dignity? Conflicts arise from the interpretation of therapeutic and non therapeutic sterilisations and the best interest test adopted by the FCA (Marion’s Case, 1992). Graham Innes, Australia’s federal disability discrimination commissioner, urged criminalisation for any practitioner conducting such procedures unless deemed necessary for life saving circumstances (“Rise in sterilisations worries disability commissioner”, 2012). Furthermore, there is a growing need for Australia to abide by International Human Rights principles, as globally sterilisation procedures are a denial of basic human rights, reproductive rights, autonomy, bodily integrity, respect for human vulnerability and discrimination (Brady, Briton and Grover, 2001).
BIOETHICAL FRAMEWORK
Women with Disabilities Australia (WWDA) (2012), identified that sterilisation in absence of free and informed consent is violating Australia’s obligations under international law and breaches every international human rights treaty to which Australia is a party. The Universal Declaration on Bioethics and Human Rights (UDBEHR) (2006), provides the bioethical framework adopted by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) by endorsing rules that govern human rights and freedom of all individuals. Strict adherence by key stakeholders in Re Angela including parents, medical practitioners, Queensland Health and FCA are reviewed. In Re Angela human dignity and human rights as described in Article three (UBDEHR, 2006) have been met as Angela’s welfare and quality of life were fundamental in the FCA decision to grant her sterilisation (Re Angela, 2010). The sterilisation procedure was recommended as a last resort to control her epilepsy during menstruation and as such Article four (UBDEHR, 2006) has been adhered too in reducing harm to Angela in the future. Whilst Angela lacks autonomy to make decisions, procedural pathways for consent have been followed and subsequent consent was provided by the FCA for her sterilisation (Re Angela, 2010).
In support of Article five and seven (UDBEHR, 2006), this ensures that special measures were taken to protect her rights and best interest where she lacked capacity to do so. However, Article seven (a) (UDBEHR, 2006) further specifies, where the person lacks capacity they should be involved to the greatest extent possible in the procedure and subsequent withdrawal of consent if necessary. Angela’s intellectual disability precludes such involvement; therefore a breach of this article is identified. Article eleven (UDBEHR, 2006), identifies that no individual or group is discriminated against on any grounds in violations of human rights and freedom.
WWDA (2012), identifies this as a fundamental breach, being perpetuated by the lack of prohibition in Australia, resulting in continued discrimination of intellectually disabled young woman, a response supported by Federal disability commissioner Graham Innes’s concern about the increasing number of sterilisation procedures for intellectually disabled girls (“Rise in sterilisations worries disability commissioner”, 2012). Advocating for the rights of the child, the United Nations Committee recommends equal opportunity regardless of intellectual disability for all persons and argued for the introduction of the ‘but for’ test (Naik, 2012c). This test is designed to exclude sterilisation procedures as not in the child’s best interest but for the intellectual disability (Naik, 2012c). Whilst the ‘but for’ test is supported by ethics groups (Naik, 2012c), the Full Court in P v P disagreed, acknowledging the disability was central jurisdiction for sterilisation. With widespread disagreement between law and ethics, coupled with Angela’s inability to provide consent breaches of Articles seven (a) and eleven (UDBEHR, 2006) are identified.
ADDRESSING BIOETHICAL ISSUES
To address these violations, future debates, submission to senate committees and governments must identify and take into account the human rights, social, cultural and economic issues that impact the decision to sterilise young girls with intellectual disabilities (Senate. Committee Affairs Committee & Aus.Senate. Standing Committee on Community Affairs, 2013). Importantly legislation and education programs must be based on human rights principles, upholding the rights of all women to bodily integrity and making informed choices about their reproductive life, whilst holding Australia to account of their international human rights obligations (WWDA, 2012). Comprehensive national law reforms will formalise protection in the best interests of intellectually disabled girls (Naik, 2012c).
CONCLUSION
Sterilisation of intellectually disabled girls has occupied the legal landscape for over thirty years since Marion’s case, with the efficacy of such procedures and debate regarding basic human rights to bodily integrity continuing. Without uniform national legislation, the state based guidelines for sterilisation will be subject to misinterpretation at law. Coupled with the absence of Australia’s support for global prohibition of unlawful sterilisations, debate from disability, human rights and advocacy groups will remain. Angela’s case further highlights the significance of this topic, however with exception of Article seven (a) and eleven, adherence in the most part to the UNESCO bioethical framework has been achieved and breaches under current law have not been made.
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