HEALTH LAW & ETHICS

  

2972 NRS Ms Jayne McKee Email:

j.mckee@griffith.edu.au

True or False.

Housekeeping
Learning@GU Textbook Tutorial Expectations

  

Having a break Come prepared Respect for others Turn off phone

Assessment


Exams

Tips for passing the exam

Questions ??

Introduction
 

What is law? The law represents a set of socially sanctioned rules and principles generated by the history and values of the society in which it operates. It can be prescriptive and punitive

Tutorial Q1


Health law controls not only what health professionals and health care institutions are expected to do, but also what they are to refrain from doing as part of their professional practice

Tutorial Q 2


Historically international law recognised 3 ways for a country to acquire new territory:
1. 2. 3.

it hath been held that if an uninhabited

country be discovered and planted by English subjects all the English laws then in being, which are the birthright of every English subject, are immediately there in force (note proviso that only so much of the English law as is applicable to their new situation)

conquest, cession and settlement.

Australian History 101!

 

Prior to federation Australia was a collection of 6 separate colonies. In the late 1800s they all got together and held a couple of conventions, where they decided on federating and drafted the constitution.

Australian History 101!



 

Commonwealth Constitution Act 1900 (UK) was passed by the Imperial parliament in July 1900. In September 1900, Queen Victoria proclaimed the Act And the new federation came into force on 1 Jan 1901, the first day of the new century.

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The Australian Constitution



Consequently now, Australia is a fully independent nation with its own Constitution and a federal system of democratic government The Constitution sets out the parameters under which the State and federal governments will operate and the relationship between them.

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Commonwealth Legislation


Section 51 of the Constitution lists those powers and areas of responsibility under which the Cth can operate with relative independence from the States. Its generally those areas necessary to ensure uniformity and consistency throughout the entire country.

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Respective powers


Commonwealth
 

State of Queensland
 

s 51 (xiv) Insurance s 51(xxiiiA) pharmaceutical and hospital benefits s 96 the Pment may grant financial assistance to any State on such terms and conditions as the Pment thinks fit.

The legislative authority is defined in broad terms To make laws for the peace, order and good government

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Healthcare funding
Health funding

rivate 29%

Commonwealth 36%
Cth State rivate

State 35%

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Delegated Legislation


An Act as passed by parliament may provide that a particular person or body, for example a Minister of the Crown, the GG or professional regulatory authority is delegated power to make rules, regulations, by-laws or ordinances in relation to specified matters.

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Delegated Legislation


Examples

Health Act 1937 (QLD)

 

Section 180 says that the Governor in Council may make regulations Section 132 regulations may be made about.....

Mental Health Act 2000



Mental Health Regulation 2003

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Tutorial Q 3 - Sources of Law

2 main sources of law in Australia 1. Legislation passed by parliament
  

Federal limited by the Constitution (section 51 eg tax, trade and commerce, immigration and industrial arbitration) State peace order and good government of the State Inconsistencies dealt with by s 109 Constitution which says that the Cth law will prevail.

2.

Common law judicial decisions

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Features of our legal system



Adversarial
 

2 parties impartial judge Strict rules of evidence Ensures that proceedings are conducted fairly, impartially and without prejudice. Requires that the court give the participants a clear statement of the charges, adequate time to prepare argument and the right to be heard on all allegations.

Natural Justice


Presumption of Innocence

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Q 4 - Precedent (Stare decisis)



The underlying principle is that if a case is decided in a certain way today then a similar case should be decided in the same way tomorrow. The reason or ground of a judicial decision is called the ratio decidendi and it is the ratio of case that is binding in future cases. Precedent can only bind if it comes from a higher court within the same hierarchy.

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Q 5 -The Court Hierarchy



Jurisdiction
 

Certain courts can hear certain matters Jurisdictional power varies according to:
   

the seriousness of the offence, the amount of compensation that can be awarded, the nationality or place of residence of the parties, Whether the matters are criminal or civil

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The Court Hierarchy

igh Court of Australia

State Appeal Courts

Full Court of the Federal Court

Full Court of the Family Court

State Supreme Courts

Federal Courts

Family Court

District Courts

Federal Magistrates Court

Magistrate Courts

Federal Tribunals

State tribunals

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The Court Hierarchy



Original and Appellate jurisdictions

 

On first hearing the court in its original jurisdiction Before a decision may be appealed need to establish grounds. Then case will be heard in the courts appellate jurisdiction judge misdirected the jury made an error wrt admitting or refusing evidence imposed wrong sentence

Grounds for appeal

  

Need special leave to appeal to the HCA

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Tutorial Q 6
Sally would commence her action in the District Court.  The Supreme Court presides over the more serious criminal matters (where prison sentences of 14 years or more can be given) and the larger more complicated non-criminal matters involving claims of more than $750,000.  Decisions from the Supreme Court are appealed to the Queensland Court of Appeal which has 5 judges  Decisions from the Court of Appeal are binding on single judges of the trial division and on all courts below in the hierarchy.  Grounds for appeal  judge misdirected the jury  made an error wrt admitting or refusing evidence  imposed wrong sentence

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Tutorial Q 7 -11
    

Civil action plaintiff v defendant Criminal case accused v prosecution On appeal appellant v respondent Judges make findings on questions of LAW Juries make findings on questions of FACT

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Tutorial Q 12
Criminal Cases  Beyond reasonable doubt

Civil Cases  Balance of probabilities

a standard of proof that stipulates that a charge is not proved if the court is not satisfied beyond reasonable doubt that the accused committed the offence charged.

a fact is proved to be true on the balance of probabilities if its existence is more probable than not.

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The Coroner


Coroners investigate the identity of the deceased, the manner in which the death occurred and the cause of death. Designed to be inquisitorial rather than adversarial. The coroner is not concerned with 2 or more parties arguing their case with one party a winner and the other a loser.

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The Coroner


In terms of the court hierarchy the Coroners court is aligned with the Mags court. Coronial findings relating to professionals, particularly where they have been adverse, have been challenged in superior courts in a bid to have them overturned. See secretary to the Dept of Health and Community Services, Schultz and Moreland v Gurvich [1995] 2 VR 69.

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The Coroner - Tutorial Q 13



The state coroner, the deputy state coroner and other magistrates acting as coroners, investigate reportable deaths that occur in Queensland. A reportable death is a death where:

the identity of the person is unknown the death was violent or unnatural, such as accidents, falls, suicides or drug overdoses the death happened in suspicious circumstances a cause of death certificate has not been issued and is not likely to be issued the death was not the reasonably expected outcome of a health procedure the death occurred in custody.

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Coroner compared to Civil action

CORONER  Inquisitorial  Findings  Aim  Evidence  Standard of Proof  Coroners will take into account family and cultural concerns when making decisions about the deceased such as the extent of the autopsy.

NEGLIGENCE  Adversarial  Plaintiff v Defendant  Standard of Proof  Outcome  Aim

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Coronial Inquest
  

An inquest is a court hearing conducted by the coroner to gather more information about the cause and circumstances of a death. An inquest is not a trial and there is no jury. Very few coronial investigations proceed to inquest. An inquest must be held if: the death is a death in custody the death occurred while the person was in care and there are issues about the care being provided the death occurred as a result of police operations unless the coroner considers the circumstances do not require an inquest the Attorney-General directs that an inquest be held the state coroner orders an inquest to be held the District Court upholds an appeal against a coroners decision not to hold an inquest.

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Jurisdictional Limits


A coroner has jurisdiction to inquire into the cause and the circumstances of a reportable death. If possible he/she is required to find:

Whether a death in fact happened The identity of the deceased When, where and how the death occurred and What caused the person to die.

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Reading an Act
       

Jurisdiction where the act was passed Act number Date

Generally the date of royal assent States the purpose of the Act The title normally used when referring to an act

Long Title

Short Title

Sections Parts, divisions and headings See http://www.legislation.qld.gov.au/acts_sls/Acts_SL.htm

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Reading a Case reference

Paton & Anor v Parker & Anor (1941) 65CLR 187

  

65 refers to the volume no of the law report CLR is the abbreviation for the Cth Law Report 187 is the page reference

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Reading a Case reference

Paton & Anor v Parker & Anor (1941) 65CLR 187

The litigants

the plaintiff and defendant The appellant and respondant Co-plaintiffs and co-defendant.

 

Information on the case and location of the report Year the case was reported

Round brackets indicates volume number, not the year is the essential identifying feature Square brackets indicates year is the important identifying feature.

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