Ashley - S Ethics Notes Y1Y2

Ashleys
Tribute to
Maleficent

Ashley Leong 42648532
MBBS I, Semester 1 ....................................................................................................................... 5

Ethics Review Pre-Midsem ............................................................................................................ 6
Introduction: Ethics and Professional Practice ..................................................................................................................... 6
Introduction: Ethics, Bioethics and Philosophy of Medicine ........................................................................................... 6
Introduction: Law and Human Rights ....................................................................................................................................... 8
Values Clarification ......................................................................................................................................................................... 10
Duty of Care ....................................................................................................................................................................................... 13
Student Welfare ............................................................................................................................................................................... 14
Student Behaviour and UQ Integrity and Misconduct ..................................................................................................... 16
Health Practitioner Regulation (guy from Aus. Health Practitioner Regulation Agency) ............................... 18
Understanding Death ..................................................................................................................................................................... 19
Sanctity/Quality of Life ................................................................................................................................................................. 19
Concepts of Disease, Health and Illness ................................................................................................................................. 20
Interactions with Colleagues ...................................................................................................................................................... 22
Medical Culture and Medical Students ................................................................................................................................... 23
Ethics Review Post-Midsem ...................................................................................................... 25
Ethical Theories and Medicine .................................................................................................................................................. 25
People with Intellectual Disability ........................................................................................................................................... 30
The Adult Guardian, Substituted Decision Making and Health Care ......................................................................... 33
Autonomy, Paternalism, Competence, Intervention, Regulation ............................................................................... 35
Assessing Competence .................................................................................................................................................................. 36
Fat Ethics and Rational Asceticism .......................................................................................................................................... 38
Health Care, Doctors and the Pharmaceutical Industry ................................................................................................. 40
Legal Framework of the Aus Health System ........................................................................................................................ 44
Role and Rights of Parents and Children .............................................................................................................................. 46
MBBS I, Semester 2 ..................................................................................................................... 49
Ethics Review Pre-Midsem ....................................................................................................... 50
Veracity in Medicine ...................................................................................................................................................................... 50
Disclosure of Medical Error ........................................................................................................................................................ 52
Patient Safety and Medical Error .............................................................................................................................................. 54
Ethical Issues in Medical Education ........................................................................................................................................ 58
The Overseas Elective: Purpose or Picnic? ........................................................................................................................... 59
Consent for Minors ......................................................................................................................................................................... 61
Introduction to Mental Health Ethics and Law .................................................................................................................. 65
Assisted Reproductive Technology, Ethics and Policy .................................................................................................... 66
Preimplantation Genetic Diagnosis, Disability and Discrimination .......................................................................... 69
Ethics Review Post-Midsem ...................................................................................................... 73
Ethical Dilemmas in Antenatal Care and Intervention .................................................................................................... 73
Abortion Ethics and Law .......................................................................................................................................................... 75
Advance Care Planning ................................................................................................................................................................. 78
Futile Treatment .............................................................................................................................................................................. 80
EOL in Paediatrics ........................................................................................................................................................................... 83
Terminal Illness ............................................................................................................................................................................... 86
MBBS II, Semester 1 .................................................................................................................... 89

Ethics Review Pre-Midsem ....................................................................................................... 90
Australian Government Professional Services Review ................................................................................................... 90
The Challenge of Euthanasia ...................................................................................................................................................... 92
Autopsy Symposium ...................................................................................................................................................................... 94
Innovations in Medicine: Clinical Research ......................................................................................................................... 96
Consent to Medical Treatment .................................................................................................................................................. 99
Informed Decision-Making ........................................................................................................................................................ 101
D-P Relationship: Stereotyping and Countertransference .......................................................................................... 104
Paediatric Ethics and Law: Infants and Young Children .............................................................................................. 107
Refusal of Tx/ Tx Without Consent ....................................................................................................................................... 111
Ethics Review Post-Midsem .................................................................................................... 115
Self-Induced Disease .................................................................................................................................................................... 115
Can We or Should We Consider Obesity a Self-Induced Disease? ........................................................................ 116
Justice and Resource Allocation in Healthcare ................................................................................................................. 118
Pain ...................................................................................................................................................................................................... 121
The Socio-Cultural Phenomenon of Complementary Medicine ................................................................................ 125
Complementary and Alternative Medicine (CAM) .......................................................................................................... 127
Finding Evidence Based Answers to Questions about Complementary Medicines ......................................... 128
The Dead, the Near-Dead and the Unconscious: Ethical and Legal Issues in Teaching Medical Students
............................................................................................................................................................................................................... 129
Brain and Mind ............................................................................................................................................................................... 132
Psychiatric Diagnosis: Nature and Ethics ........................................................................................................................... 135
Student Registration and Impairment ................................................................................................................................. 137
Doctors Health ............................................................................................................................................................................... 138
Looking After Yourself Doctors Health ........................................................................................................................... 138
Involuntary Treatment: Ethics and Law ............................................................................................................................. 140
Involuntary Assessment Treatment: A Clinical and Ethical Perspective .............................................................. 141
MBBS II, Semester 2 .................................................................................................................. 143

Ethics Review Pre-Midsem ..................................................................................................... 144
Public Health Ethics ..................................................................................................................................................................... 144
Immunisation .................................................................................................................................................................................. 148
Care of Elderly ................................................................................................................................................................................ 155
Defensive Medicine, Legal Liability and the Standard of Care ................................................................................... 158
Human Enhancement and the Goals of Medicine ............................................................................................................ 161
Transplant Allocation (Renal) ................................................................................................................................................. 165
Human Research Ethics .............................................................................................................................................................. 167
Ethics Review Post-Midsem .................................................................................................... 171
Substitute Decision-Making, AHDs and EOL Decisions ................................................................................................ 171
Office of Public Guardian ............................................................................................................................................................ 173
Confidentiality and Privacy ....................................................................................................................................................... 174
Notification: Clinical, Public Health and Ethical and Legal Dimensions ................................................................ 178
Public Health Aspects of Notifiable Conditions ................................................................................................................ 180
Notifiable Cancer Registry ......................................................................................................................................................... 181

Commercialisation of Medicine, Medical Advertising and the D-P Relationship .............................................. 182
Commercialisation of Medicine ............................................................................................................................................... 185
Patient Safety .................................................................................................................................................................................. 186
Boundary Crossings: Ethical, Legal and Disciplinary Aspects ................................................................................... 187
Boundary Violations in the Therapeutic Relationship .................................................................................................. 188
Patient and Professional Concepts of Illness, Causes and Meaning ........................................................................ 189
MBBS I, Semester 1
Ethics Review Pre-Midsem

Introduction: Ethics and Professional Practice
1. Commitment to professionalism (Honesty, responsibility, self-appraisal, doctor-patient relationship,
discrimination, relating to others, participation)
2. Lectures (Professionalism, professional behaviour, medical regulation, accountability)
3. Student Integrity and Misconduct Policy (assessment of professional behaviour in conjunction with 9
specific expectations of SOM)
Introduction: Ethics, Bioethics and Philosophy of Medicine
Brain
Mind
Body (obey physical laws,

biological laws)
Person
Causes
Reasons
Determinism
Freedom
Explanation
Justification
Facts
Values
Science
Ethics/law
Disease
Illness
Curing
Healing
There is a dualistic nature of us: very intuitive

Western empiricist trend
o No supernatural causes
o Empirical generalisations for scientific theories
o Rational science
o Evidence based medicine tests these
Human behaviour
o Natural science: purposeless, predictable, excludes human behaviour, is the body/person a
machine?
o Psychopathological classifications (DSM IV) scientific study of mental disorders
Descriptive/scientific?
Eg. sociopathy, personality disorders, gross narcissistic personality disorders
Making diagnoses like this is starting to get into human freedom issues...
o Freedom Responsibility Praise/Blame Ought/ought not to ETHICS
Origin of morality:
o God
o Nature/sense (social and biological learning over evolution) social regulation,
endorsement of cooperative arrangements, norms and rules

Reason naturalistic human institution
Intuition
Attitudes/feelings (we cant be objective about it), rational, cooperative organisation of
universal emotional responses concerning what we care about
Does ethics= law/religion/professional code/public opinion ?
The ethics centre is in the Frontal Lobe not an ethics centre per se, but a highly complex group of
functional systems in the brain that mediate our ethics
Prefrontal cortex: emotional processing, general, social and moral decision-making (Phineas Gage,
1848)
Ethics: the most basic critical study of good and bad, right and wrong
Medical Ethics
1. Formal discourse: Medical Board of Australia (empowered by statute)
2. Semi-formal discourse: Colleges from professional groups (AMA, Royal colleges)
3. Unofficial discourse: Journals, commentaries (academic bioethics commentariat,
debates)
Socrates: How should we live? How should we die?
Kant (Kantian): Religious duty, reason, naturalistic fallacy
Hume: Naturalistic (secular) passions, consequentialism, utilitarianism
Research ethics evolution
o WWII (unconsented research, terrible practises) Holocaust started research ethics and
informed consent
o Nuremberg
o Beecher
o HREC systems
Clinical ethics
o 50s and 60s rapid technological development
o Dialysis: brain death criteria
o Prolongation of life: quality of life
o Manipulation of early life forms
o End of life issues
o Civil Rights movements and challenges to authority
o Doctor-patient relationship
Bioethics
o Principlism
o Responses to principlism
Communitarianiism
Global bioethics
Benefit sharing
Alternative conceptions of ethics
- Anglo-American analytic (Pragmatism)
- European (Communitarian)
- Aristotelian (Narrative ethics, feminist ethics)
- Postmodern
o Autonomy
o
o
o
o Bioethics and biolaw

Role of doctors
o Managing uncertainty of inductive knowledge in relation to medical theory and practice
(applying evidence-based medicine) Inductive reasoning, also known as induction or
informally "bottom-up" logic,[1] is a kind of reasoning that constructs or evaluates general
propositions that are derived from specific examples. Inductive reasoning contrasts with
deductive reasoning, in which specific examples are derived from general propositions.
o Often practise within the constraints of uncertainty in relation to medical knowledge, ethics
and law
o Traditional ethical values (tradition, authority, profession, social contract, role-modelling) is
being challenged by new bioethics
Introduction: Law and Human Rights
Conventions: etiquette, norms, customs

Morality... and then Law: source?, nature of authority? sanctions?, objectivity?, unwritten,
welfare/harm/relationships, connection with consciousness, rationality, freedom, general/universal
Hippocratic Oath: first do no harm
Utilitarianism: fine to do harm as long as the majority benefit
Law is changing, source is Acts of Parliament
Two broad legal traditions

o Natural Law (Aquinas) emotional
Participation in divine law by rational creatures who participate in the world
Original, independent of human beings
Natural world and supernatural world interconnected
Facts = values (permanent)
Divine law: immoral law is not law
Human law: imperfect version of natural law
Traditions, customs, religion, morals, beliefs, rituals, practices
Stoic philosophy: law and morality are the same perpetual throughout the
ages
Cicero: True law is right reason in agreement with nature; it is of universal
application, unchanging and everlasting ... Valid for all nations and for all times,
and there will be one master and one ruler, that is, God, over us all, for He is the
author of this law, its promulgator, and its enforcing judge.

Medieval period: Human reason still discovers natural law but this is revelation,
canon law was principle vehicle of natural law
Early modern period: Grotius self-evident principles, then independent even of
X God, more secular version beginnings of individualism and social contract
related to individual rights
Later modern period: Natural rights associated with fundamental laws, 18th C
Declaration of Human Rights, Locke: need for regulation and protection from
government power
Norm is part of the fabric of the world
o Legal positivism (Henry II) non-emotional
We impose law on the world normative is NOT part of the fabric of the world,
we created it
Does not promote virtue, but facilitates peaceful, harmonious society
Doesnt deal with ethics in a very emotional way
Secular: law has no necessary factual or logical connection with morality, derives
from human experience and practised morality, not any ideal or universally valid
source
Defined formally or procedurally (democratic process), subject to challenge,
change and resistance eg. Abortion law
Hobbes: Provide protection from natural state of war between one another.
Rejects existence of naturally occurring sociability. We adapted natural rights of
man.
Benthan & Austin: Law amounts to commands of the sovereign and is backed by
sanctions
Utilitarian slant
Application 1: Nazi Law
o Natural law: immoral law is not law and need to be obeyed
o Legal positivism: immoral law is still law but can be repealed and replaced
Application 2: Law and morality (both are good)
o Natural law: obeying law is not motivated only by fear or authority, it has a moral
element/foundation
o Legal positivism: law is not primarily aimed at promoting individual virtue, moral experience
is not narrowly confined to legal categories
Application 3: Laws, morality and governments
o Natural law: States can encroach on religious and moral freedom, more consistent with
resistance to unjust laws
o Legal positivism: states developed to reduce impacts of religion and morality, positivist
model of law helps harmony occur
Human Rights
o UN Declarations: claimed as universal and self-evident (closer to natural law model)
Values Clarification
Medical ethics: a form of applied ethics (not meta-ethics or normative ethics), different varieties
utilise different normative frames (eg. utilitarianism)
How we get our values

o Primary socialization: family and school
o Secondary socialization: co-curricular, MBBS program, church group
o Role-modelling: peers, teachers, clinicians
o Clarifying through experience: what do I find tolerable? What are the consequences?
Values: Emotional, cognitive, behavioural
Clarifying my values:
o Sense of self and self-worth
o Rational thinking (principles)
o Emotional awareness (moral sensitivity, reactive attitudes)
o Critically examine personal behaviours (action)
Foundational theories: there are certain primary values we cannot justify rationally (they are
irreducible, just are)
o Set 1: Community, elder authority, ancestral reverence
o Set 2: Personal strength, human perfection, inequality
o Set 3: Pleasure / Pain
o Set 4: Survival, security, flourishing (common to all societies, but realised differently,
common emotions, common needs)
o Syllogistic (deductive) model of applied ethics
(1) Moral principle (epistemic priority) + (2) fact (3) moral conclusion
(1) Killing innocent babies is always wrong + (2) Jack is an innocent baby (3) Killing
jack is morally wrong
o Inductive/analogy model of casuistic ethics (like science and precedents)
(1) particular moral judgement (epistemic priority) + (2) analogous cases (3)
Principle for all cases
(1) Aborting Janes baby is wrong + (2) Jill and Beth and ... are pregnant (3)
Abortion is wrong in circumstances
Coherence theories: there are no foundational values. The best we can do is try to make our values
as coherent as possible.
o Neither principles or particular cases have priority
o Reflective equilibrium: coherence achieved through achieving more or less confidence in
believe through back and forth reasoning
o Allows principles to be challenged as a result of novel cases
o Foundational principle/moral institution (1) All killing is wrong doesnt equal with New case
(2) Euthanasia

o
o
Option A: Subsume new case under original principle = All killing is wrong so we should not
euthanase
Obtion B: Modify original principle = All killing is wrong except in cases of euthanasia

o
o
o
o
Lower level values are revised more readily

Higher level values are close to intuitions
Wide reflective equilibrium includes consideration of facts, social matters, competing
normative theories
Problems: hard to argue when basic values are so different, Coherent System X and Y
mutually exclusive
Medical Practice & the Law
Think first 1. Criminal/civil law 2. Professional conduct (suspension/de-registration)

o Deregistration: gross professional misconduct eg. murder, rape
o Suspension: serious clinical incompetence/gross negligence eg. serious harm or death
without intention
Kerridge, Lowe and Stewart: Law is a system of rules and principles, formally created, which governs
specified area of human activity.
Law may be influenced by moral considerations, but is of limited assistance in discussion of moral
issues and lags behind these subjects to constant change
Woods v Lowns (1966)
o Moral obligations legal obligations
o Law as an instrument of social control is a blunt instrument
th
18 century French political philosopher Charles Montesquieu: separation of powers
o Legislative: parliaments debate bills and pass laws
o Executive: ministers and departments implement legislation
o Judicial: decide legality and interpret legislation/apply principles and precedents
Natural Law modern exemplar: Human rights
Positivism: pragmatic rules that reflect societys broad consensus
Principles theory: combination of both, interlocking rules and broad morally based principles
(Dworkin)
Critical legal studies: law is politics exercise of the dominant power
Feminist jurisprudence: the legal person is male

Sources of Law:
o Legislation
o Common (case) law: principles and precedents developed by judges in cases that come
before them
Australia Act (1986) reduced English law influence
Principle of stare decisis: degree of predictability, fairness and certainty
Ratio decidendi: legal principle forming precedent of case
Obiter dicta: other parts of judges decision (can be important if made in superior
courts)
High court of Australia > the High Court > Federal Courts > State Supreme Courts of Appeal > State
Supreme Court > District/County Courts > Magistrates Court
Administrative Tribunals: QCAT (Qld Civil and Admin Tribunal) for medical and health matters,
District Court judge assisted by 2 health practitioners and a community/lay representative
Coroners courts: violent, suspicious, unnatural deaths (eg. hospital deaths). Inquiry conduced in an
inquisitorial rather than adversarial manner with an aim of fact finding
Law Reform Commissions: Queensland Law Reform Commission give reviews and propositions,
these can be acted on into law
Civil law: everything else other than criminal law v Statute Law v Equity (similar to common law)
Legal duties of doctors
o Needs to be enforceable (this depends on level of controversy and may depend on
proceedings being brought eg. euthanasia)
o Criminal Law
Intention: mens rea
Murder (Shipman UK): Gross professional misconduct, permanent deregistration,
life jail sentence
Rape (R v Michaux 1984): Permanent deregistration, long jail term
Manslaughter (Pearce QLD): Suspended registration, jail sentence 5 years down to 6
months
Manslaughter (Patel 2010): s288 and s301 Criminal Code: exercise reasonable skill
and care in doing an act which is dangerous to human life or death. Surgical tx may
extend to diagnosis and advice to patient concerning it. (Should we perform the
surgery at all?)
X assist suicide, perform unlawful abortion, negligence, GBH, defraud (eg. Medicare
fraud)
Action brought by state, not victim
Standard of proof: beyond reasonable doubt
o Regulatory/Disciplinary Law
Health Practitioner Regulation National Law Act 2010 (QLD)
Duty to behave professionally, maintain clinical competence, remain unimpaired
MBA can impose range of undertakings, disciplinary actions
Only QCAT (~District Court) can suspend or de-register
Duty to report other health professionals who have performed notifiable conduct
(drugs, sex, mental health, significant departure from professionalism)
o Public Law
Maintain health of community (notifications, reporting to courts)

Provide accurate certification
Human Rights/Administrative Law

Provide services and records
Not detain a patient against their will
Other Civil Law: Contract, Equity and Tort
Concerned with relations bw individuals
Purpose to seek compensation/remedy
Action brought by plaintiff, not state
Standard of proof: balance of probabilities
1. Contract: usually provision of service for fee (exercise reasonable skill and care in
order to benefit patient)
2. Fiduciary Duty: obligation imposed by law of equity and acts to protect beneficiary
as there is a great D-P power imbalance due to vulnerability. Must not exploit eg.
duty not to have sexual relations, accept gifts, confidentiality
3. Tort: civil wrongs are negligence/trespass/defamation/nuisance
a. Obtain consent (failure = trespass)
b. Disclose information (failure = negligence)
c. Exercise reasonable care to avoid damage (failure = negligence)
Duty of Care
Duty: Formalisation of moral consensus

Failing to discharge a required duty of care = negligence
History for industrial revolution wanted to limit liability whilst maximising requirement for
compensation to encourage enterprise = now must demonstrate fault (failure to take reasonable
care)
Same deal with medicine medical indemnity crisis (increasing compensations, medical services
were decreasing) Civil Liability Act 2003 (QLD) Current definition of duty of care (about what a
reasonable person would do in the situation)
Establishing a duty of care
1. Forseeability and Proximity
o Physical proximity
o Causal proximity (bw act and injury)
o Circumstantial proximity (D-P relationship!)
o Donoghue vs Stevenson 1932 (snail): You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would be likely to injure
your neighbour.
2. (1) + what is fair, just and reasonable
3. Rejection of (2) and (3)-stage tests for a test of reasonableness in the circumstances
according to community standards
Medical negligence requirements (must satisfy all 3):
1. Duty of care owed (foreseeable risk qualified by factors in Civil Liability Act 2003)
2. Breach of the standard of care (competent professional practice)
3. Breach caused damage
o Factual causation (breach is a necessary condition of harm)
o Normative causation (appropriate for scope of liability to extend to harm)

Torts: Negligence, trespass on person/land, private nuisance, defamation
No general duty to rescue
Except NT: Criminal Code s155
Lowns v Woods (1996): special circumstances created relationship of proximity, despite no previous
D-P relationship
Positive professional obligation by MBA: Good Medical Practice: A Code of Conduct for Doctors in
Australia (and to disclose medical error)
Good Samaritan Legislation
o Law reform act 1995 (QLD): No liability for health practitioner if action done in good faith
o Legal protection once health professional treats
Transport Operations (Road Use Management) Act 1995 (QLD): If a person is injured, must make
reasonable endeavours for medical aid
Routine duties to patient:
o Diagnosis and tx
o Attendance/arrangement of attendance
o Disclosure provision of information for decision-making
o Follow-up
o Confidentiality
o Disclose medical error
o ...Duty to review test results sent by random Nurse Practitioner?
Student Welfare
AMA Code of Ethics (1966): consider first the well-being of your patient
Ethics of Duty
Self
Others
Egoism
Altruism
Desires
Morality
Interests
Duty
High status and income, autonomy, self regulation in return for ethic of duty, high standards of
care and decision-making burdens (no recognition of self)
Aristotelian ethics and Practice: happiness=virtue, morality=desires, interests, values, personal life
Patient care = beneficence (feeling good about yourself)

o Requires continuing critical appraisal
o Grounded in desires and values
o Replaces altruism with beneficence
o Replaces self-sacrifice with work-life balance and boundaries
Omnipotent Professional Disorder
o Corrupting effects of power, dominance, status
o Ind: inflexible inflated and obsessive beliefs, poor impulse control, failure in effective
communication
o Social: rank-closing and protection, avoidance of genuine responsibility and accountability
o Masquerades: exceptionless altruism, martyrdom, unearned authority
o Effects: harm to everyone
Welfare, impairment at SOM
Health Practitioner Regulation National Law Act 2009 (QLD) Put it first in QLD b/c QLD has no upper
house, now all states have it
National Registration and Accreditation Scheme (from 2010)
Involves registration of students
o National Board may ask education provider for list of persons undertaking approved
program of study
o Each National Board must keep a student register
o Registered health practitioner or student to give National Board notice of certain events
(offence punishable by 12 months imprisonment or more, finding of guilt for an offence
punishable by imprisonment, foreign registration suspended) within 7 days
AHPRA (Australian Health Practitioner Regulation Agency) supports Medical Board
Impairment (physical or mental) must detrimentally affect students capacity to undertake clinical
training
Education provider must notify National Agency if
o Student enrolled has an impairment > may place the public at substantial risk of harm
o Even if not dire, school can optionally notify the board
Grounds for voluntary notification (can be health assessed)
o Student has been charged with an offence that is punishable by 12 months imprisonment or
o Student has, or may have, an impairment
o Student has contravened (violated) a condition of students registration
Student Behaviour and UQ Integrity and Misconduct
9 categories for expectations of the school

1. Honesty/integrity
2. Responsibility/reliability
3. Compassion
4. Self-appraisal
5. D-P relationship
6. Discrimination
7. Respect
8. Relating to others
9. Participation
Advantages: better in line with UQ policy, involve wider group of School staff as decision-makers,
involve UQs educational role in professional regulation
Professionalism, Accountability and Self-Regulation
Profession: specialised knowledge and skills, requires extended education, standards of competence
(professionally and legally regulated), profess values, codes of ethics, self-regulation, get authority
and prestige, professional autonomy/protection
Knowledge science competence ethical standards codes
Ethical codes
o Good Medical Practice: A Code of Conduct for Doctors in Australia (MBA)
o AMA Code of Ethics
o Medical Professionalism 2010 (AMA)
Self-regulation processes: education (MBBS then specialist training), Aus. Medical Council
accreditation of Med Schools, Quality assurance committees, EBM, Legal standard of care, Medical
Board
Self-regulation attenuation:
o Health Quality and Complaints Commission (separate body)
o National competition policy
o Increased community representation (MBA)
o Shifts in negligence law Rogers v Whitaker (surgeon must disclose all risks which may
eventuate)
o National Registration and Accreditation: Health Practitioner Regulation National Law Act
2009 (QLD)
Areas of self-regulation:
o Clinical competence/performance
o Physician impairment
o Unprofessional conduct
Health Practitioner Regulation (guy from Aus. Health Practitioner Regulation

Agency)
Council of Australian Governments (COAG) commissioned Productivity Commission report (2006),

complex multi-registration system, no uniformity National scheme for registration 2010
Since July 2010: Nationally consistent legislation, 1 national scheme (+WA)
Advantages: mobility, uniformity, efficiency, collaboration, transparency
National Boards: protect public, powers governed by National Law, set policies, registration
o Develop standards, codes and guidelines for profession
o Investigate complaints (work with AHPRA and Health Complaints Entities in each state to
decide who will investigate) these are not public unless referred to Independent Tribunal
(very serious ones)
o Conduct panel hearings and refer serious matters to Tribunal hearings
o Approve accreditation standards
o Criminal history checks
o Renewals (provide annual statement, make certain declarations)
State and Territory Boards: decide about individual practitioners, registration, get delegations from
National Board
APHRA: supports Boards, advises Ministerial Council about administration of the national scheme
Registration standards
o Criminal history
o Professional Indemnity Insurance (must be in force)
o Continuing Professional Development
o Recency of Practice
o English
National Registers (provide public record of):
o Registered health practitioners
o Conditions and undertakings
o Deregistered practitioners
Understanding Death
Death in Australia ABS data

o Life expectancy has improved over the past 20 years 5.6 years for males, 3.9 years for
females
o Boy: 79.5 years
o Girl: 84 years
o Standardised death rates (SDR) were highest in NT, lowest in ACT
o Death rates have been decreasing for 1-4 years old (Y)
Defining death
o Bernat, Culver and Gert (1981) permanent cessation of functioning of the organism as a
whole
o Gert, Culber and Clouser (2006) permanent cessation of all observable natural functioning
of the organism as a whole and the permanent absence of consciousness in the organism as
a whole and in any part of that organism.
o OLD: Traditional cardiorespiratory definition: asystole, apnoea (leading to death of all organs
within a short time) this changed with ventilators!
o NEW: Brain death: a person is brain dead when all electrical activity of the brain has ceased
for a specified period of time (includes higher cortical functions and lower brain stem
functions)
o Donation after cardiac death (DCD) increase transplant rates (ambiguity of when Person
A is pronounced dead)
Biological (brain/body) and biographical (mind/person) death
o John Kerr, Professor of Pathology at UQ discovered apoptosis (now modern heal move
people closer to their apoptotic potential)
o Death through trauma: biological and biographical death simultaneous
o Death through dementia: biographical death precedes biological death
o Persistent Vegetative State (PVS): still some activity in brain
Manipulating death
o Manipulate up: prolong dying by temporarily supporting some of the dying organs
o Manipulate down: withdrawal and withholding when no progress is being made
Medicalising death
o Homosexuality: criminal > sin > medical category > non-category now (result of social action)
o Ancient: Priest used to stand at end of bed
o Post Enlightenment: death is now a diagnosis
The meaning of death
o Good: pain-free, open acknowledgement of imminence of death, surrounded by family and
friends, unfinished business resolved, manner of ind personality, palliative care as a
medicalised good death, death as personal growth
Sanctity/Quality of Life
Living person?
o Human embryos
o Artificially sustained whole brain dead bodies
o Individuals in PVS
o Individuals with advanced dementia
o Anencephalic babies
Objective quality of life: basic needs are met and the material resources necessary to live life
o Singer: infanticide up to a very young age is relatively permissible and there is no morally
significant difference bw a foetus and an embryo
o But it really is subjective!
Singer
o Quality of life position
o Dangerous challenges conventional wisdom, even though he looks like a mild-mannered
reporter
o Says Smith combines two morally different things
o Valuable: consciousness and lives of those who wish to live
o Species membership not morally significant
o Not all babies should live b/c quality of life may not be sufficiently good, preferable to
bring baby to die by lethal injection rather then succumb (but tx can make baby
comfortable) no distinction bw withdrawal and lethal injection
o Precedent > doctors withdraw life sustaining tx
o Heart is important but reason must play important part. Values cant be driven by emotions
alone (Hitler)
o Better to save money on lives not worth living in 1st world countries and transfer to those
worth living in 3rd world countries
Neonatologist: I will never be an assassin
Wesley Smith
o Sanctity of life position
o Everyones life is of equal value
o Doesnt believe any individuals are expendable (non-utilitarianism)
o Self-evident we must never kill a baby
Concepts of Disease, Health and Illness
An individual may have diabetes mellitus according to one test, but not according to the other:
accuracy vs convenience/costs must maximise patient welfare, even if false negatives
Definition of Health
o Negative definition: health is the absence of disease
o Positive definition: health is a state of complete physical, mental and social well-being, and
not merely the absence of disease or infirmity
o Cannot health=global well-being
o Health can deteriorate in absence of some discrete diseases
Abnormality: statistically, clinically, prognostically (increased risk of morbidity or mortality)
Deafness: statistically and clinically abnormal, yet some dont regard deafness as a problem
subjective matters of preference and choice
Essentialist/biomedical view: disease descriptions thought of as entities independent of their
occurrence in the person, knowing the cause and scientific explanation privileges the condition and
therapeutic efforts are directed at fixing biomechanical cause, separate from interactions with body
mechanisms
Nominalist view: not excluding essentialism, but accommodating it within a wider fram that allows
for redescription/reclassification, name of diseases are not separate entities, but the common
properties shared by individuals sharing the same sickness, better allows for values in defining
diseases
Disease or illness
o Individual evaluation not sufficient we dont care about things some individuals value
(cosmetic differences) but we do about things individuals dont care about (like advanced
dementia)
o We want 1. Both descriptive and evaluative elements 2. Some boundaries around what
healthcare is responsible for
o Fedoryka: health is natural flourishing (physiological requirements with evaluation
flourishing is the good of the organism). Functions that define health those occurring
naturally, not from our choices (but some appear to be chosen)
Hard to be objective with psychiatry
Disease-mongering: creating new diagnostic categories to develop new drugs $$

Psychiatry
o Are science and freedom compatible?
o Nature and status of intentionality
o Causal determinism: we make necessary and sufficient conditions for occurrence to happen
and use these to make predictions. If we are wrong, we question the explanation which
grounds the prediction in the first place.
o Hard to distinguish natural dysfunction vs. chosen dysfunction b/c we are looking at
behaviour and mental which is arguably subject to choice and control
o Alternative solutions:
1.
Psychiatry is not scientific/essentialist/biomedical, so is not a proper part of
medicine
2.
Nominalist model accommodate aspects that are basic (prior to any choices), and
apply appropriate measures (eg. drugs) but also account for interpersonal,
intentional aspects with other therapeutic methods (eg. psychologist)
Scope of health care
1. Utilise ideas of natural function, flourishing and dysfunction, combining the descriptive and the
evaluative
2. Include maladies other than what an essentialist, mechanical conception of disease accepts

3. Avoid over-medicalisation of categories that are not problems of natural dysfunction, but also
over-medicalisation of individually disvalued problems
4. Aim for provisional agreement amongst social values in relation to healthcare
Interactions with Colleagues
Referring to specialist: rationale and requirements for doing so and what are reciprocal obligations
o Adequate detail in communication
o Knowledge and acknowledgement of roles and responsibilities of roles and responsibilities
of consultant and GP
Ethics vs etiquette
o Ethics: Moral imperatives have a characteristic importance and urgency in virtue of being
grounded in principles that are very general, non-arbitrary, and at the heart of what makes it
possible for human beings to flourish in communities.
o Etiquette: Categorical, but not necessarily important. Similar to morals but they do not have
the kind of central and ineliminably pervasive importance in human affairs that moral norms
have.
o Blurred bw bad manners
Thomas Percival: wrote first medical ethics book: Medical Ethics 1803 (dealt with being a gentleman
and the professional code of ethics for physicians and surgeons)
o Duties
o Common standards
o Cooperation bw doctors
o Independence of doctors from employers
Didactic teaching: intended to teach, particularly in having moral instruction as an ulterior motive (v.
Heirarchical v. Compliance with unquestioned authority) like didactic medicine (paternalistic)
Student-doctor problems:
o Negative role-modelling
o Unethical tx
o Ostracism of complainants
Dying role of GPs (no longer equal partners)
o Community demand for super-specialisation
o Financial bias of Medicare system for procedural work
o Fragmentation of care GP no longer has a management role, just a referral/gatekeeper
role
Referrals are necessary but fragment care, but should be limited
Inter-specialist referrals can occur without conference with the GP further
fragments occur and reduces overall continuity/continuation
GP loses track of what is going on silos of medical practice constant referral but
doesnt know whats going on in other silos
Hospital care often multi-specialist with no coordination
GP not present in most hospitals
Patients sometimes request referrals that are not required (demand seeing a
specialist only) OR referrals without even seeing GP (GP is totally bypassed)
o Task substitution: nurse practitioners
Problems with colleagues:

1. Other doctors treatments
o Comment on colleagues competence
o Balance obligation to tx patient adequately vs. confusing patient
o In a sense, start from square 1: Tell me about the problem, dont blame other Dr, say
what you think tx should be
o Legal duty of disclosure and mandatory reporting laws to MBA
2. Other doctors problems
o Problems with treating doctor as (denies right to be a patient, assumes doctor knows
everything about their problem as well, can collude
o Impaired practitioners (fear of being prevented from working, resistance to obtaining tx)
Medical Culture and Medical Students
1.
2.
3.
1.
Organised medicine in the 19th and 20th centuries: rise of professions, social contract, ethics of
Aristotelian practice
4am logic
o learning moral principles and critical thinking skills will be insufficient to enable junior
doctors to act ethically. Additional knowledge and skills for dealing with the pressures of
hospital work that will act against them behaving in accordance with their ethical
convictions are necessary to complement the decision-making skills that currently form the
focus of ethics teaching
o Ethics educations aims to produce ethical practitioners
o So much more needed
o Junior doctors need to be ethically-sensitive and have the courage and ability to voice
concerns
o Patient harm vs. being a junior doctor (culture is changing slowly)
Negative aspects of medical culture:
Negative role-modelling
o Failure to be honest with patients (not telling them the full story)
o Paternalistic attitudes
o Failure to disclose errors to patients
o Disdain for evidence-based practises (like handwashing)
o Accepting unreasonable largesse (eg. pharmaceutical companies benefits)
o Failure to acknowledge impairment or lack of knowledge: perfectionism and narcissism
Abuse
o Sexual harassment or verbal abuse/humiliation
o Delegating tasks inappropriate to training stage (eg. breaking bad news, obtaining consent)
o Nepotism, favouritism
o Racial discrimination
Heirarchies and Fitting In
o Abuse and negative role-modelling engender fitting in, complying, not saying anything
cynicism
o Perpetuates the culture provides comfort, reinforcement, status, power
o Values and behaviours result from medical socialisation and hidden curriculum
Challenging to the Medical Culture:
Structural Changes

Changes to self-regulation: mandatory reporting of clinical standards, impairment, boundary
issues
o Patient safety movt including error disclosure
o HQCC (Health Quality and Complaints Commission) Standards: handwashing
o Limits on pharmaceutical support benefits
o Safe working hours developments
o Exposure of inappropriate responsibilities (eg. obtaining consent)
o More medical education about law
2. More Resistant
o Personality-related issues (problems with consultants and seniors who have problematic
personalities (narcissists)
Paternalism: restricting the freedom and responsibilities of those underneath you
Derogatory comments
Demeaning behaviour
Boundary issues
o
Ethics Review Post-Midsem

(see Ethics Review Midsem 1 for notes from before the Midsem)
Ethical Theories and Medicine

Is ethics a kind of ecology of human flourishing?
If so, how is ethics hooked up to facts and science?
Generally, ethics
o is the most basic critical study of good and bad, right and wrong
o is NOT intuition, law, religion, public opinion, codes, etiquette
Although religion does provide deliberate, formal and specific ethical instruction
o IS rational, universal, general, abstract, overriding
We do use reason in developing ethics
The basics:
o Systematizing behaviour according to categories of right and wrong
o Defending and recommending right behaviour
o Disapproving and sanctioning wrong behaviour
o Right and wrong are conceptually related to what we care about and what we find
important
Divisions:
1. Meta-ethics: studying semantic, psychological presuppositions, epistemological, metaphysical
commitments of moral thought the philosophy of ethics (Professors in office pondering what ethics is)
o Moral realism
o Non-cognitivisms eg. emotivism (regards ethical and value judgements as expressions of feeling
or attitude), universal prescriptivism
o Error theories
o Moral relativism
2. Normative ethics: theories about determining how we ought to behave (to do with standards)
o Deontology (the study of the nature of duty and obligation): Persons are rational agents who
have a duty to follow moral rules that are binding
This duty has no regard to consequences of following the rule
Merely based on duty
Origins of the rules are:
1. Revelation: theological version (eg. 10 commandments)
2. Intuition: we just know what the rules should be
3. Reason: Kantian version rules are known through reason
o Says desire is irrelevant to ethics
o Moral rules are universal
o Categorical imperative (tx as people, not as things):
Act only according to a maxim where you can at the same
time will that it should become a universal law
(universalisability) and
Always treat humanity, never simply as a means, but always at
the same time as an end
o Advantages:
Universalisability
Importance of reason
Overridingness of morality
Importance of persons
o Problems:
Split from desires is unrealistic
Reason does not motivate people (emotions and desires do)
this is just an instrument we use
Counter-intuitive results (cannot lie to Nazis that you are
hiding a refuge, very rigid, absolute idea of adherence to duty)
Problem of conflict of duties: no absolute duty can yield to
another
Duties youve promised to look after your brother, so cant
go to movies with your girlfriend
o Medical application:
Emphasis on importance of persons
Autonomy/self-determination choices as long as they are
competent
This is good but NOTE Mill (a utilitarian) also emphasised
individual liberty and autonomy
Utilitarianism: a consequentialist theory, rather than by reference to any intrinsic moral
features like truthfulness or fidelity of the action
Mills Greatest Happiness Principle: Actions are right as it promotes the greatest
amount of happiness for all people
Principle of utility: Maximise the good, minimise the bad
Impartiality: Everyone is treated equal, so everyones happiness is equally good
The standard of goodness:
1. Classic utilitarianism: Happiness or pleasure
2. Preference utilitarianism: Satisfaction of preferences, desires, goals (recognise
preferences may be different, yet a preference for killing people wouldnt
maximise pleasure)
3. Ideal utilitarianism: Other states of affairs than pleasure like autonomy, good
functioning, friendships, etc
Singer:
o Moral intuition: suffering and death are bad
o Aid principle: if it is in our power to prevent something bad from
happening without sacrificing anything of comparable moral
importance, we ought morally, to do it
o Factual claim: By contributing to aid organisations, we prevent suffering
and death without sacrificing much
Advantages:
o Realistic: take consequence to all parties into account
o Practical: resource allocation, avoidance of harm, etc
Problems:

Difficulties in identifying relevant parties, calculating consequences,
assigning values and weights to parties
o Not mindful of individual rights
o Cant provide basis for concerns about justice or interests of minorities
o Counterintuitive results: preference for killing? Torture?
o Act utilitarianism or rule utilitarianism?
Medical applications:
o Beneficence: maximise net benefit to patient
o Non-maleficence: minimise harm to patient (tell them risks and benefits
so they can make their own decision)
o Risk/benefit analysis
o Opportunity cost analysis
o Virtue ethics: We should be good people
Focuses on personal character traits and motivations, not on actions and
consequences
Morally good actions flow from a virtuous character: honesty, courage, compassion,
sincerity, integrity, industry
The virtuous person is motivated and disposed to be virtuous out of a cocern for
morality
Training, experience and practice of virtues leads to virtue
Aristotle: Happiness is the highest form of goodness
o Happiness results from different excellences
o Humans primary excellence is ability to reason
o Mean between extremes: rashness-COURAGE-cowardliness
Advantages:
o Important for training and upbringing
o Reflects emotional aspect of moral decision-making
Problems:
o Circular (really just complements mainstream theories?): the virtuous
person does good things, and good things are what virtuous people do
o Leaves out rights, rules and consequences
o Too demanding: context may excuse sometimes lacking of virtue
o Virtues is just the starting point: no content
Medical application:
o Role-modelling: Excusing context for lack of virtue Ebola virus
outbreak in Africa where a doctor found 30 dying patients amidst rotting
corpses who were highly infectious, and the doctor left the patients.
o US pragmatism: forget about all this deep thinking
Knowledge testable according to its usefulness
Practical human needs the basis for judgement and evaluation
Rejects absolutism and universality of thought
Believes moral advance emerges from experience
Has elements of utilitarianism and consequentialism and aspects of Kant
3. Applied ethics: normative theories applied to different areas (Bioethics/medical ethics, journalism ethics,
etc)
o
Examples: Applied deontology, utilitarianism, principlism, casuistry (resolving of moral problems

by the application of theoretical rules), bioethical pragmatism, feminist/care ethics, postmodern
ethics (self-concious, self-determination), discourse ethics (debate), capabilities approach (the
power or ability to do something)
Bioethical principlism
o Ethical principle: A fundamental standard of conduct from which many other
moral standards/judgments draw support for their standing
o Express general values underlying rules in common morality and guidelines in
professional ethics though broad and abstract, should be applied to the whole
world
o Broad, general, high level, abstract (intuitions/basic values)
o Specifications of principles rules or action guides
o A framework, not a formula
o Universal core of principles: autonomy, beneficence, non-maleficence, justice
1. Autonomy:
More than freedom from external constraint (liberty)
Recognises values of persons (deontology and utilitarianism)
Recognises freedom to make ind choices, as long as these do not
violate the rights of others (Mill and utilitarianism)
Pretty much just individual freedom and choice
Reflected decisions, values and beliefs (incl bad decisions Mill),
tolerance and respect
Enhanced autonomy: we are very independent b/c we are
wealthy, and so not mindful of our community obligations
Foundation for biolaw: consent, refusal, disclosure
2. Beneficence
Doing or producing good, performing acts of kindness/charity
Wanting to do things spontaneously, and also in terms of duty
Goal of healthcare welfare of our patient
Preventing, removing, avoiding pain
Can be in tension with autonomy (paternalism)
Consistent with utilitarianism (promoting good), moral sense
(sympathy), virtue ethics
3. Non-maleficence: primum non nocere (first do no harm)
Net benefits should > harm (sometimes unavoidable)
Too much autonomy can harm of injustice
Too much tx can harm of burdensomeness, indignity
4. Justice
Egalitarianism: spread the benefits as much as possible
Fair distribution of burdens and benefits
Distributive justice based on: equality, need, merit (give lower
priority to self-induced disease), desert (potential contribution to
society), fair innings (dont waste on old people??), market,
lobbies
Rationing of finite medical resources: demand, increasing

technology, increasing and ageing population, mixed
private/public system, decent minimum standard of care
Too abstract, general, universal, with insufficient facts

No means to resolve conflicts bw principles (eg. autonomy vs.
beneficence when the doctor wants to do good for the pt, but pt
refuses tx)
Autonomy too atomistic, individual and dominant over community
(shared decision-making better approach to consent, the pure
autonomy model is more consistent with consumer model of
health care when there should be more emphasis on compassion,
relationships, social roles and patients cant just request anything
resource problems and integrity of medicine)
Problems with other principles, like justice
Problems:
Casuistry
o
o
Case-based deliberation, using precedents and experience of previous cases

Dont worry about principles, just look at cases (not as dominant as principlist
idea)
o No reference to universal principles or rules, rather look at consensus
o Similar to common law reasoning
o Problems:
Different interpretations of ethical aspects of cases
No actual ethical basis
Needs additional reference to broad principles (you need some

sitting in the background)
Feminist ethics/care ethics
o Emerged a lot from nursing profession says principlism is too abstract, not
meaty enough and too mindful of autonomy/too much about individual
determinism
o Critical of abstract principlism and atomistic autonomy model
o Care, love, trust considered as important as rationality, objectivity
o Relationships and community (interdependence) of primary importance
o Gender issues/exclusion in health care and research (of providers and patients)
o Critical of dualities like mind-body, reason-emotion, etc
o Think principlism and other theories ignore relational and caring aspects of health
care
o Problems:
Leaves too much out
Need both care and justice

Rights theories
o Negative rights form the basis of political liberalism (we agree more on things
like, no tx if pt doesnt want tx, but harder to agree with positive rights like
immunisation and that all pts should have healthcare to what level? $$)
o Problems:

Harder to agree on positive rights/obligations
Negative rights over-value liberty and autonomy (not enough
emphasis on community and social welfare positive rights)
Are ethical theories (philosophical thinking about morality) imposed by society?
Professional ethics (codes of ethics) is thinking of ethics in a very pragmatic way
Is morality more personal than ethics?
o Thinking about human behaviour being right or wrong that is social and traditional
Ethical relativism and universalism
o Local moralities: secular, values/customs, hippie, superstitious VERSUS
Notions of right and wrong are relative to cultures dept on how they were raised
Says NO common morality
Yet perhaps there are universal moral principles, even if some people think there are
none
Examples: female genital mutilation for non-medical reasons. Obligatory within a
particular culture. No health benefits and can cause severe bleeding and problems
urinating, potentiating newborn deaths. It is carried out on girls between infancy
and 15 years. It is unconsented. It is internationally recognised as a violation of the
human rights of girls and women.
It is a crime in all Australian jurisdictions, despite consent (Criminal Code Act 1899
QLD) common morality view that this is a violation of human rights
o The common morality (underpins principlisim): set of norms everyone shares that binds all
persons in all places at all times and are very broad and abstract
o The universal core of morality: a set of principles that all morally serious people should
accept (like dont harm an innocent person)
People with Intellectual Disability
People werent saying anything after labour, the mother thought the baby had died, she was
appalled by her own response dread and grief
Families experience:
o Feeling marginalised, they want you to treat the family member with respect and dignity as
well, not as a specimen or lesser
o Blurring bw public and private spheres greater scrutiny, judgement and blame
o Role of service user receiver of care (than valued citizen), shunted bw variety of
professionals many services but no responsibility (fragmented and crisis-driven system)
o As a doctor, whenever you get full of yourself clinically, remember they are getting
exhausted with their fragmented care
Families need from doctors:
o Negotiate with people rather than impose black and white answers
o Ensure equal access to tx
o View disabled as family member that is unique and of worth and value
o Listen to the parents! Ask what its like for them? What they want for themself?
It is not the child but the society that causes families to break apart. Please take the blame away
from the kids. X The presence of a child with a disability doesnt wreak havoc in a family
depression divorce.
Disability stats:

300 000 to 500 000 Australians (more than Indigenous population)
High mortality and morbidity (average 5.3 medical conditions/person where 2 were ethics
unrecognised or poorly treated)
o Pervasive devaluing lose ability to identify
o Intellectual disability: cant do much or not worth it
Inverse care law: Those who need medical care the most are least likely to receive it
Intellectual disability:
o IQ <70 (2 standard deviations from the curve)
o Onset before 18 years of age (exception: Victoria is before 6 years)
o Deficit in adaptive behaviour
o Doesnt matter what you measure, as long as the measures are many and varied
o Society: On the part of society, requires superior assets in adaptive behaviour in providing
significantly more than average training procedures to achieve the level of functioning for
the disabled individual
International Classification of Functioning, Disability and Health
o Functioning: all body functions, activities and participation
o Disability: umbrella term for impairments, activity limitations and participation restrictions
(in society)
Support needs: focus on activities and participation and what support the person needs to do this
(eg. strategies when the bus is late, training to catch bus)
Aetiological factors:
o
o

750+ known causes: Down Syndrome (1/660 live births), Fragile X (X is stacked full of genes,
Y is not as complex), Cerebral Pals (2/1000), Autism Spectrum Disorder
History of intellectual disability
o Pre 1800: Variable
o Early 1800: Rights movt, education, stratification of the species
Kallikak Family book: Henry Goddard concluded that a variety of mental traits were
hereditary and society should limit reproduction by people possessing these traits
Darwin stratified humans: top of pile was white, Anglo-Saxon male
Nazis exterminated people with intellectual disability
o Late 1800 Early 1900
o

Institutions, increased isolation
Paradigm shifts: education protection of disabled protection of society (eg.
social menace) genocide in WWII (Nazis exterminated disabled)
Rights movt, advocacy
Normalisation: deinstitutionalisation and integration, access to generic services
(disabled people went to normal schools), in order to establish behaviours which are
culturally normative as possible, means making available patterns of life and
conditions of everyday living which are as close as possible to regular circumstances
and ways of life of society
Dignity of risk (sometimes we automatically stop them like Oh, its ok I can do this
or I got this, when scary, like driving cars)
Beware of expediency: quality of being convenient and practical despite possible
being impoer or immoral
Least Restrictive Alternative
Social Role Valorisation: incorporates the highest goal of normalisation the creation, support and
defence of valued social roles for people who are at risk of devaluation
Down syndrome baby born:
o Convey suspicion
o Leave them with time and with your name and written information (limited information)
o Be available
o Assess cardiac status (need to check for cardiac abnormalities)
o Revisit in 24 hours
o Offer to talk to grandparents/friends
Communication:
o Person first
o Abilities before disabilities (dont assume disability)
o Use concrete examples or diagrams (eg. dont touch teacher in pool)
o Check and recheck their understanding (repeat if necessary)
o Open-ended questions
Occults: hidden things underneath the disability (because of less communication, easy to miss
obvious things)
o Sensory impairment
o Psychiatric disorder (depression)
o Pain (dental or MSK)
o Epilepsy
o Medications (neuroleptics, anti-convulsants)
o Infections
o Health promotion/prevention (immunisation, PAP, breast, skin checks)
o Lifestyle and nutritional problems (Vit D deficit)
o Gut problems (constipation, GORD, ulcers)
Constipation is common (70%)
May present with behaviour change and can lead to obstruction
o Menstruation (confusion with sexuality, least restrictive alternative)
Now a Medicare item for healthcare assessments for people with a disability
The Adult Guardian, Substituted Decision Making and Health Care
The Golden Rule: A health provider must obtain consent to provide health care
130 000 adult QLDers living with impaired decision-making capacity many in social isolation! L
1900 active guardianship clients with the Adult Guardian
22 000 working age QLDers with impaired decision-making capacity had no meaningful day activity
Informal decision making (non-appointed): Statutory Health Attorney, spouse, family, etc
Formal decision making (appointed): Attorney, Guardian, Administrator
Adult Guardian is a role established in 1998
o Independent statutory officer operates without interference
o Appointed by QLD State Government
o Guardianship: protects an impaired adult under QCAT appointment
o Investigations: conducts these where there are allegations of abuse, neglect, exploitation
under an Enduring Power of Attorney or QCAT Order
o Healthcare: Acts as Statutory Health Attorney of last resort, consistent with adults care and
protection
o Community education, guardianship information service
Decisions they can make: any personal matter specified by a QCAT order
o Where or who the adult lives with
o Type of working environment, if any
o Education or training
o Legal matters not involving property or finances
o Seeking help and making representations re. containment or seclusion or restrictive practice
matter
Consent
o Patients need information on risks, AEs, benefits and alternatives
o Patients need to be able to receive, comprehend, retain and recall relevant information
o Persevere with that choice, at least until the decision is acted upon
o Have the right to refuse health care
Situations consent not required: First Aid Treatment, non-intrusive examinations made for
diagnostic purposes, OTC drugs
Situations requiring consent: withholding or withdrawal of life-sustaining measures (docs will be
asked if the commencement or continuation of the measure for the adult would be inconsistent with
good medical practice)
Situations consent not required in impaired adults: urgent/emergency care, withholding and
withdrawing life sustaining measures in acute emergency care, minor uncontroversial health care
matters (eg. tetanus vaccine)
Capacity
1. The adult understands the nature and effect of their decision (including the
consequences of refusing treatment)
2. The adult freely and voluntarily makes the decision
3. Can communicate the decision in some way
Capacity is decision specific, domain specific and time specific (incapacity can be temporary)
Others who can step in to provide consent:
o Direction under an Advanced Health Directive

Takes effect when you have lost decision making capacity
Can give directions about consent to certain future health care, indicate
circumstances under which life support is to be withheld or withdrawn and
authorise management in health care
No euthanasia
Priority over EPA
Should get one if your medical condition is likely to affect your ability to make
decisions
o Appointed Adult Guardian (by QCAT)
Can mediate dispute (eg. if siblings fighting over decision to withhold assisted
ventilation and need consent straight away, Adult Guardian can step in)
Can make decision in lieu of a Statutory Health Attorney what are the time
frames to the doctor? If no time, makes decision. If more time, mediates with family.
Then tells QCAT what decision theyve made
o Adults attorney for health matters under an Advanced Health Directive
o Adults attorney for personal matters under an Enduring Power of Attorney
Legal documents that allows an individual to make decisions on your behalf
When people have capacity, they appoint a substitute maker of choice in the case
they lose capacity
You can appoint any adult, after youve spoken to them (and you think they
understand your wishes and views)
Personal (where youll live, services you require begins when youre incapable) or
Financial (including most legal matters begins whenever you want, if you dont
specify a time, they can make decisions on your behalf straight away!)
Must be over 18, non-paid carer, have legal capacity, cannot be bankrupt (if for
Financial), understand responsibilities under Powers of Attorney Act (can resign if
adult at capacity, if not, only effective if Court/QCAT grants it) and Guardianship and
Administration Act
Can be revoked if you have capacity
o Adults Statutory Health Attorney
Person who has automatic authority to make healthcare decisions for the adult
Needs no formal appointment (from court or tribunal)
Has relationship with the adult
Can consent to most health care issues (medical, dental tx, life sustaining measures)
Can be spouse, primary carer (not salaried), close friend, relative or Adult Guardian
(last resort)
Guardian is a person appointed under GAA to make personal and lifestyle decisions
o Could be family member/close friend/Adult Guardian
o Over 18
o Not be a paid carer
o Not be a health provider for that adult
o Have regard to health care principles
QCAT can appoint substitute decision makers for both health and financial matters in the event a
person loses capacity to make decisions and does not have an EPA
o Makes decisions about capacity of an adult

Considers applications about appointment of a guardian or administrator and appoints
Makes declarations, orders, recommendations and directions about all these, enduring
documents and attorneys, approving decisions by informal decision makers and consenting
to special health care
Special Health Care Matters: Situations only QCAT can make for impaired adult (not Adult Guardian)
o Donation of tissue
o Sterilisation
o Termination of pregnancy
o Experimental health care and special medical research
QCAT applications: to appoint a Guardian/Administration, must demonstrate specific need for
appointment and that existing arrangements for decision making are inadequate
o Notify adult concerned
o Check whether adult has given anyone power under an EPA
o Tell EPA your intentions
o
o
Autonomy, Paternalism, Competence, Intervention, Regulation
Autonomy: atomistic or relational?

Foundational for biolaw: consent, refusal, disclosure
Duty of care: to preserve life and health
Psychological autonomy: self-rule
o Needs capacity, or can be limited by physical illness affecting mental function, or a mental
disorder, or severe anxiety (which may limit the satisfaction of their desires)
Moral autonomy: respect for self-rule
o Literally, a respect for self-rule and rights, and self-determination
o Must respect their refusal of treatment (could be Jehovahs witness no blood transfusion)
o Must have capacity, but ought to be limited by certain external factors limited by
potential harm to others interests
J S Mill: Individuality is shaped by both good and bad decisions, we cannot be sure if each person
is the best judge of their own interests
Difficulties:
o False beliefs
o Inconsistent beliefs
o Can a bad decision reflect autonomy?
o Can personal subjectivity be unlimited, and the person remain autonomous??
We minimise the requirements for competence in order to maximise the opportunity for self-
determination, and to minimise paternalism
Elements of competences are procedural or formal, not substantive (having a firm basis in reality
and so important, meaningful, or considerable)
Paternalism is strong when the patient is more competent, and weak when the patient is not
competent
Is weak paternalism really paternalism? (they can hardly make decisions about their own interest)
Does persuasion = paternalism?
Eating disorder disturbances of control/self-rule/self disturbances of autonomy/the self
excess control
What threshold do we use for dieting/starvation as a lifestyle choice before it constitutes a mental
illness?
Definition of mental illness
o Mental Health Act 1974 (QLD): no definition, common sense understanding
o Mental Health Act 2000 (QLD): a condition characterised by a clinically significant
disturbance of thought, mood, perception or memory
Exclusions:
Intellectual disability, drug or alcohol use alone
Expression of particular religious, political, moral opinions
Race, sexual preferences
Antisocial/illegal behaviour
Grounds for involuntary admission (need all of):
1. Person suffering from mental illness
2. Illness requires immediate tx
3. Tx available at authorised mental health service
4. Illness may give rise to imminent risk of harm to self or others OR illness
may acuse person serious mental or physical deterioration
5. No less restrictive way to tx
6. Person lacks capacity to consent OR has unreasonably refused tx
o NO: bizarre behaviour may result in detention, rights to liberty may be infringed
There is disagreement over what is a psychiatric disorder, what should be classed as
mental illness and who can be detained
Assessing Competence
Competence and capacity are used interchangeably

In ethics and law we presume capacity, though we can assess it during diagnosis, self-care, tx
consent or refusal, testamentary capacity (making a will)
6-step capacity assessment
1. Ensure a valid trigger is present
o Past history, risky decisions, inappropriate emotion, behaviour, driving problems
o Inconsistent or out of character, evidence of confusion, memory deficit,
personality and mood changes, poor self-care, dangerous memory lapses
o Being taken advantage of
o Loss of language, social skills, responses

2. Engage those being assessed
3. Information gathering (from person and collateral information other informants)
4. Education about choices and consequences
5. Capacity assessment (evidence of incapacity unaware of choices, cant appreciate
consequences, decisions based on delusional construct?)
o No leading questions
o Open discussion/plain language: What do you think artificial ventilation is? How
did you reach that decision? What was important to you in your thinking? What
do you think will happen if you do that? (benefits/risks in light of their values)
o Negligence standard: should be able to understand material risks (what is
material to them)
o Formal testing:
MMSE: test of cognitive functioning incl orientation, attention, recall,
language (problems are it doesnt account for educational levels/cultural
factors false ve)
MacCAT-T: better, aligned with legal definition of competency,
particular decision inserted into template
6. Act on results of assessment (may need to find a surrogate decision-maker)
Capacity varies according to certain conditions: tiredness, complexity of decision, stress, language,
illness
Capacity assessment principles
1. Always presume a person has capacity
2. Capacity is decision specific
3. Dont assume a person lacks capacity based on appearances
4. Assess the persons decision-making ability not the decision they make (competences
is procedural or formal, not substantive)
5. Respect privacy
6. Substitute decision-making is a last resort
Does the person have the capacity to make this decision now?
Three issues:
1. Is competency a matter of cognition or cognition plus something else?
o Claims: Rationalist decision-making model is insufficient and discriminatory
o Broader conception: motivations, emotions, intuitions
o Competency should be augmented (expanded), not measured
o Some brain-damaged individuals retain cognitive abilities, but not full, affect-
relative sense
Counter-claims: Decision-making still requires deliberation of some kind
Rational requires relevant information and deliberation in terms of ones
values, informed by emotions
Assessing and augmenting competence are different tasks
Brain-damaged individuals are an interesting limiting case
2. Is competency a threshold achievement or a matter of degree?
o Claims: Capacity is decision-specific for individuals, so this means there are
degrees of capacity

More complex decisions require higher degrees of competence
Marginal competence suggests there are degrees requiring assistance (eg.
reminders, oragnisation of information, helping person align info with their
values)
Counter-claims: Capacity is decision-specific, but doesnt imply there can
be different levels of capacity
Marginal competence collapses into incompetence
Degree concept will become a threshold concept, as that is what law
requires
Danger of imposing values because some imagined level not reached
Complexity of decisions means capacity is decision-specific, not that
someone can be less competent but still overall competent
3. Should standards of competency vary according to decision-risk?
o Claims: Intuitively appealing as appears to protect against rash decisions (sliding
scale of competence)
o Counter-claims: Conflates determination of competence with normative
evaluation of outcome, inviting paternalism
o Implies asymmetry bw consent and refusal: incoherent that because
they refuse tx, they are incompetent
Law of capacity
o Common law test:
1. Believe information
2. Comprehend and retain information
Weigh up information to arrive at a choice
o Statutory definitions (GAA 2000 QLD)
Understand nature and effect of decision
Communicate decision in some way
Freely and voluntarily decide
o Categories of statutory legal test
Functional: current understanding, used in most states, equivalent to common law
test and = procedural/formal
Status-based: linked to condition, in NT intellectual disability = lack of capacity
Outcomes-based: inconsistent with common law, in WA if cant make reasonable
judgements = substantive
Doctors are generally not good at assessing competence, but now there are systematic, structured
approaches to assessing capacity with improved reliability
o
o
Fat Ethics and Rational Asceticism
Apply concepts of autonomy and paternalism to a clinical case

Demonstrate how to apply a systematic method of ethical analysis
Ethical problem solving guide:
1. Thinking: Identifying ethical issues and conflicts
2. Problem Solving: Analysing underlying values and sources of disagreement
3. Action: Resolving ethical dilemmas in clinical cases

Principles of bioethics: 1. Autonomy 2. Beneficence 3. Justice (fair distribution of benefits)
Social Contract Model of Health (Hobbes, Kant Rawls, Nussbaums)
o Device (rather than a formal contract) for identifying social conventions that promote
interests of society
o Citizens give up some of their rights to invest in society
o Health care is a shared public good
o Society invests in health care to provide for its citizens when resources are tight social
benefit needs to be considered
o All decisions must be transparent and defensible
Identify the ethical problem: very important as sometimes just a social, legal or medical problem
Gathering data: what facts are available? What information should I seek?
Consider the evidence: Ethics EBM (empirical work), seminal cases that have been published with
analysis (casuistry)
How does this look from another perspective or using another theory?
Obesity more prevalent among students from Pacific Islander backgrounds or low SES. Least likely to
be obese were Anglo/Caucasian or Asian students and in particular, the girls. Obese female
adolescents from Aboriginal, Middle Eastern/Arabic and Pacific Islander backgrounds were less likely
than their Caucasian or Asian peers to perceive themselves as too fat
Health professionals should be careful not to exaggerate the risks of overweight or obesity or
inadvertently create weight concerns among young people
Different body image perceptions should be taken into account when planning clinical initiatives
among adolescents from varying ethnic groups
Obesity is a discourse that emphasises thinness and weight loss as a universal good as rests on
the assertion of the correlation bw obesity and ill-health AND that losing weight will cure associated
disease
Obesity discourse s instrumental in manufacturing a public health scare and individuals are deemed
largely responsible for their own health and for making healthy choices as if they were free of
structural and cultural constraint that bear upon peoples opportunity to achieve these health
behaviours
Obese has moral characterisations=overweight, lazy, self-indulgent, greedy guilt, stigma, shame
Slenderness/thing=conscientiousness, control, virtue, goodness
The rational ascetic (characterized by severe self-discipline and abstention from all forms of
indulgence)
o Body subject to systematic regime of rational conduct
o Discipline the body, ensure the body will behave in methodical and regular ways
o Conscientiousness: virtues expressed in the careful and methodical way a person pursues a
task, prob
o This approach prohibits certain actions like idleness, whilst also instituting methodical
practices
o Obesity: need to encourage inds to take responsibility for choices and make deliberate
decisions
Considering the law: USA and UK children removed from parents when they became so obese their
health was at risk, and parents believed to not be making enough effort
In Australia call for laws against marketing fast food to children, advertising restrictions on TV
times, mental health legislation requirements
Health Care, Doctors and the Pharmaceutical Industry
Conflict of interest: doctors and pharmaceutical industry

Explain responses already undertaken to minimise conflicts of interest and influences on rational
prescribing
Disease-mongering: pharmaceutical companies try to expand the disease circle more drugs you
can expand into
o Creating new diagnostic categories (Pharma) developing new drugs to exploit them
o Eg. ADHD, male and female sexual dysfunction, menopause, pregnancy, DSM V (expansion
of psychiatric categories with new set of descriptors for a number of diseases, has financial
connections)
PBAC: Recommends medicines to be subsidised to Minister based on effectiveness, safety, cost

utility and affordability (drugs on Pharmaceutical Benefits Scheme PBS)
o Categories: unrestricted, restricted, authority required, Life-saving Drugs Program (Special
Access)
o Quality Use of Medicines Framework (rational prescribing): Choosing suitable medicines,
wise management, use of medicines safely and effectively
o Once on TGA, you can prescribe it
o If not on PBS, you pay full price (if on PBS, cost of drug falls $800 to $12 (medical abortion
cheaper)
PBS: 75% cost paid by gov
o Drugs often used for non-registered uses off-label prescribing (excess prescription but
still gets covered anyway, though its not meant to)
Influence of Pharma
o Biomedical research (clinical care, practice guideline development)
Largest funder of medical research
Cost of bringing in a new drug: $300 800 million
80% candidate drugs not registered
BUT they spend 2-3x as much on promotion
o Institutions engaged (research, professional societies, patient groups, med journals)
o Supporting organisations (accrediting agencies, insurers, licensing boards, gov)
Common interests:
o Translation of scientific discoveries into products
o Safety and efficacy
o Quality
Divergent interests:
o Medicine emphasises patient focus
o Pharma emphasises market share and commercial success via pt utilitisation of medicines
o Implications for clinical judgement and public trust
Duality of interest of doctors

o Duty of care to patients
o Interest in research and teaching
o Career progress
o Self-care/family/financial security
o Socialising with peers
o Recognition
o Pharma
Conflicts of interest
o Advertising and advertorials
Even in academic peer-reviewed journals and clinical software
Generic name judged illegible more than half the time (Breach of Medicines
Australia Code)
Therapeutic Goods Advertising Code
Doctors deny influence but there is evidence of advertising on clinical decision
(unconscious)
Direct advertising to patients/consumers (DTCA) illegal in Australia, not in US or NZ
BUT can advertise in relation to specific conditions (disease awareness campaigns
with their details)
o Drug detailing
Pressure can be overt or covert
Drug samples or support programs for patients who go on to a particular drug
Emphasis on positive and minimisation of AEs

Evidence for increased rates of prescribing detailed drug and requests for addition of
drug to hospital formularies
Remember drug reps are human beings too though, dont treat them like shit!
Gifts, entertainment and travel
Largesse, drug-industry sponsored CME dinners, etc
Reciprocity rules: creates indebtedness, often unconscious
Continuing Medical Education (CME)
Pharma sponsorship makes many professional meetings possible
Doctors arguably deserve a comfortable setting
Even when content controlled and generic titles used
Market research/surveys
Aim to determine what drugs are prescribed, in order to target low or non-
prescribers
Doctors get compensated could be a bottle of wine
Ghost-writing, distortion of research, clinical guidelines, opinion leaders
Pharma offers opinion leader first-author position on their Paper (manuscript
preparation in-house with payment, non-disclosure of industry support)
Pharms have financial ties to opinion leaders then ask them to speak at a CME (DSM
V), purely by association (logo on bottom)
Australian Code for the Responsible Conduct of Research
Sponsorship influences type of research (less non-Pharma research/influence of
patent status)
Distortion of evidence (selective reporting, suppress negative results/AEs)
distortion of guidelines and prescribing
Patient Advocacy Groups (PAGs)
Information and support, research funding, lobbying
Rational for Pharma to support increases their credibility and is another
communication channel to the gov
Medicalisation and disease-mongering
Pharma both responds to demand (increased for lifestyle txs) and creates new
markets
Pharma and medical students
Socialisation processes (hidden curriculum)
Gifts compromise student objectivity and critical skills, free-riding for now
reciprocity
Self-regulation of policies at Aus medical schools for managing potential COIs with
Pharma require improvement
Public distrust
Undue influence including financial
Lack of transparency and adequate patient info
Harm to patients inappropriate use of drugs and exploitation
Privileging of areas amenable to drug txs (doctors find it easier a pill for every pill)
Privileging of drug txs when they may be less appropriate
Overprescribing
Inadequate sanctions

Perpetuates medical culture of expectation
Unlikely to change:
Pharma is a great commercial enterprise for the country (competition
policy)
Sig participation of Pharma in research, development and marketing
Ongoing relationship with health professionals
Should we disclose payments bw Pharma and doctors? Atm just self-
regulatory sys
Pharma should be expected to comply with law and its own self-regulatory
mechanisms, but will always exist as a business
Self-regulation by medical profession has been largely unsuccessful
Medical profession
1. Transparency, communication and disclosure
Declaration of all financial ties to Pharma, with specific $ amounts
Commitment to transparency in ethical codes
Patient representation on boards (increased consumer representation)
Utilisation of existing complaints processes (eg HQCC)
Issues:
o Thresholds for disclosure?
o If found study has reasonable financial support, research
participants may decline
o Disclosure can be a bandaid fix (provide false sense of security)
o Requirements of a financial contract have confidentiality
2. Medical undergraduate education
Limitation or elimination of Pharma contact with students
AMSA (Aus) policy on sponsorship (US has PharmFree) put all money
into a pool where funding can be requested??
CME: alternative sponsorship, more self-funding, pooled funding from
Pharma
Industry sponsorship of all aspects of medical education
3. EBM, objectivity, rational prescribing
Decline gifts (already significant control here)
Accept travel support only if speaking or speak pro bono
Reduce expectations of entertainment, food, etc
Ask reps re evidence for claims, benefit relative to current prescriptions,
cost to patient and society
Evaluation of GP software packages and elimination of ads on it
National Prescribing Service RADAR, ADR Bulletin/Therapeutic
Guidelines
4. Codes of ethics
Should draw us to practice objectively
MBA: Good Medical Practice COI: Not allowing any financial or
commercial interest in a hospital, other health care organisation, or
company providing health care services or products to adversely affect
the way in which you treat patients

o
Pharma
1. Medicines Australia
Members provide 86% of PBS items
Pitiful sanctions on drug companies for breaching Drug Code of Conduct
Medicine Australia Code of Conduct
ACCC required Medicines Australia to publish drug-company funded
hospitality at CME as a condition of approval of code of conduct for next
5 years in 2008
US some companies publically list all payments to clinicians (Physicians
Payments Sunshine Act)
Netherlands independent central register of >500 relationships
Nothing in Australia yet
MA Transparency Working Party: aims to replicate US Sunshine Act by
2015 and pass TGA (Pharmaceutical Transparency) Bill 2013
o Problems: Payments can be split bw company websites
o Not all Pharma are members of MA
o Not all therapeutic goods companies/associations need to
comply
Relevant Law
Statute: TGA 1989
Disciplinary law: COIs (eg. pt recommended to buy brand of vitamins GP was a
distributor of)
Negligence: Rogers v Whitaker and Rosenberg v Percival material risks include
risks of COI bw different medical procedures, or if doctor was receiving financial
advantage
Equity: prescription of product without disclosing financial advantage could
breach equitable duty to patient
Legal Framework of the Aus Health System
Regulation of the health system and delivery of health services

Legal frameworks for health may differ at Commonwealth vs state/territory level
There is a health systems specific legal framework and
General legal framework that applies to health systems (like workplace health and safety)
Health Law Specific Frameworks 2 levels:
o Laws relating to systems through which health services are provided
o Laws that regulate the relationships bw patients, health professionals and providers
Commonwealth and State Powers
o Commonwealth of Aus Constitution Act 1901: federal gov and distributes power to states
Collect tax (eg. Medicare levy)
Collect national statistics
Interstate and trade powers: regulating pharmaceuticals and medical devices
Regulate insurance (private health insurance) wounded servicemen had
diminished health, then you want them to fight a war for you
Quarantine
o Before, healthcare was believed to be a private, for profit thing

Hospitals were there but you had to be very sick and poor get locked away there
Then WWs changed perception gave so much to the country, increased expectation that
the gov should give something back
o Constitutional reform
Pharmaceutical Benefits Act 1944 (give anti bx)
No legal, executive or judicial function of the Commonwealth can be found which
supports it knocked off the books held Constitutional referendum in 1945
Revised: to provide pharmaceutical, sickness and hospital benefits, medical and
dental services (just can assist and fund, not directly regulate) health and
welfare powers
o Civil conscription doctors outraged on impinging of their autonomy, worried about pay
cuts
X British Medical Association vs Commonwealth 1949 (didnt pass)
X GP Society vs Commonwealth 1980 (didnt pass)
Wong v Commonwealth 2009 dodgy doctor shaking hands with 300 students and
billing for 300 consults (Medicare number privilege stripped)
o Commonwealth funding
Lots of National Health Reform Acts and PBS and now transferred responsibility from
States to local entities in return for lots of federal $$ (has the power)
1. Establishes a National Independent pricing authority - fair price to pay for a
service
2. Established a National Health performance authority - charged with a great big
audit around performance
3. Australian Commission for Safety and Quality in Healthcare - monitors safety and
equality
o Commonwealth what may be used
Therapeutic Goods Act 1989: Licenses pharmaceuticals, medical devices,
complimentary medicines, blood products and some testing procedures
o State governments
Manage/regulate delivery of health services
Public health related issues
Hospitals and Health Boards Act 2011 managing health system: Hospital and Health
Service Performance Framework controls money expenditure based on performance
Local entity power is easier to manage
Allows healthcare to meet specific needs of their community
Still need to meet basic national standard though - made 17 boards that
have responsibility for service provision
Consistency, and no money from States (not happy as they lose their power
- middle man)
Regulation of health professionals
o Health Practitioner Regulation National Law Act QLD first (now uniform in the country
except NSW), and lots of other Acts
o Competition and Consumer Act 2010: tension between training places to ensure training is
good, and the commercial need to keep numbers down and salaries up (monopoly of
Colleges on cost of training)
o
o

Health Legislation (Professional Standards Review) Act: looks for outlier weirdo doctors and
fines/removes Medicare licence for 3 years
National Quality and Complaints Act 2006: reviews improvement in quality of health services and
manages health complaints
National Health Reform Act 2011: after doctor death, assess each hospitals compliance with
standards
Dispute resolution about:
o Proposed reforms to health system
o Legislation setting out what is to be provided and how
o Decisions made about service/product provision
Dispute resolution mechanisms
o Law reform: from lobbying, like with the British Medical Association did to change the
Constitution
o Judicial review of executive decisions: lawful, rational and fair eg. Blyth District Hospital vs
SA Health Commission
No public duty of hospitals to provide a full range of services arising from funding
agreements bw Commonwealth and State
o Human Rights proceedings: courts consider if state legislation contravenes human rights law
eg. Sex Discrimination Act 1984 (IVF only available to people who are married and clinically
infertile, discriminates single, de facto, gay couples, socially infertile people)
o
Role and Rights of Parents and Children
Natural law tradition human rights as modern representation today

o In more traditional societies, morality and law is intimately connected, we like to separate
these in our society
o Rights are universal pertain to every human being in the world without exception
Development of individual rights in English law
o Magna Carta 1215: made the law above the King as well (no longer has absolute
power/dominion)
No free (tut tut) man shall be taken or imprisoned or exiled except by the lawful
judgement of their peers or by the law of the land
o Habeas Corpus 1679: strengthening this idea of accountability of a states power to restrain
a mans liberty
o Bill of Rights 1689: Rights and Liberties of Subjects and Succession of the Crown
o US Bill of Rights 1791
o Post WWII 20th century rights declaration
UN: Universal Declaration of Human Rights, Human Genome, Bioethics
No medical experimentation without medical consent
Development of rights for children
o Children not explicitly included or excluded from early rights documents
o 18th C: children were also in colonies, having been convicted of crimes along with adults
o 19th C: children in mines and factors, 3 year olds being chimney sweeps burns, fractures,
sweeps cancer, infection

1788 First petition to British Parliament
1850 Prohibition of sweeps under 10
1875 Climbing Boys Act: gradually more protection
Geneva Declaration of the Rights of the Child 1924
Eglantyne Jebb lady in 1876 started Save the Children Fund
Wrote a series of statements about protection of children after WWI
Adopted by League of Nations 1924 (previous UN)
The child must be given the means requisite for its normal development,
both materially and spiritually
The child must be the first to receive relief in times of distress
The child must be protected against every form of exploitation
o UN Declaration of the Rights of the Child 1948
Added to Geneva Declaration
Entitled to name and nationality at birth
Special attention to handicapped children
Children need education, care affection and understanding
o UN Convention on the Rights of the Child 1978
All signed (engaged), all states have ratified (wedding ring) except US and Somalia
Bring local legislation into line with Convention (dont have statute or Act in Aus, but
have aspects in our law)
States can register Declarations (clarify their interpretation) and register a
Reservation (not happy with a particular article)
Committee on the Rights of the Child (10 experts) that monitor progress of States:
national report in 2 years then every 5 years
Best interests of the Child
Children to be consulted on matters affecting them
Involvement of children in armed conflict: 126 signed, 100 ratified
Sale of children, child prostitution and child pornography: 130 signed, 67
ratified
o Joint Standing Committee Inquiry (Australia Parliament) signatory of everything
Negative rights: freedom from something
o In governments: no torture
o In medical care: autonomy, non-maleficence, freedom from neglect, abuse
o For children: free from enslavement, use in war
o Usually less controversial
Positive rights: freedom to something
o Education, services for the disabled
o In medical care: beneficence, justice, sufficient resource allocation
o Usually require resources and these rights produce responsibilities and obligations
o For children: right to protection by immunisation (subsidised)
Parents have qualified rights concerning children but these are better seen as obligations
o Doesnt exist for benefit of the parent but benefit of the child (paramount principle)
o Justified only insofar as performance of duties towards child (law overrode parents saying no
to life-saving blood transfusion for their child because of religion)
o
o
o
o

But law doesnt override immunisation (imminence), as well as herd immunity (could be
overkill/overbearing)
o Banning of corporal punishment
o Negligence (can be criminal) in relation to abuse and neglect
Western childrens rights issues
o Immunisation: rights to refuse vs rights to protection
o SCAN (Suspected Child Abuse and Neglect): doctors are legally obliged to report to relevant
child protection agencies if any reasonable believe you have a child that is abused/neglected
o Coercion: of students into careers
o Protection vs freedom/economic issues: child safety in swimming pools and playgrounds
o Consent to medical tx for mature minors (14-17 years)
rd
3 world childrens rights issues
o Malnutrition, disease, life expectancy
o Education
o Child labour, war, trafficking and prostitution and pornography
A lot of things minors can do that require accountability/responsibility (get criminal offence,
shooting license)
Medical tx on child: consent required unless emergency or to prevent serious morbidity
o Parental right consent
Extends only until child competent to consent
Part of common law duty to provide necessaries of life
Not exhaustive cant sterilise, gender reassignment
Disputes Supreme Court parens patriae power (State acting on best interests of
child)
o Best interests of the child
Aus: narrow objective view best medical interests
UK: wider view includes parental subjective views and circumstance/finance (bone
donor)
Overriding parental decisions is more common in cases of refusal, but consent can
also be overridden (eg. non-therapeutic sterilisation)
o
MBBS I, Semester 2

Veracity in Medicine
Failing to tell the truth may be employed in medical practice in service to different ethical principles
Veracity: habitual truthfulness and the duty to tell the truth
o Medical rationale: respect for persons, fully informed decisions and helping maintain the
doctor-patient relationship
Lie: make an assertion that is believed to be false to some audience with the intention to deceive the
audience about the content of that assertion
Autistic children have a very cause and effect thinking about the world, so dont understand social
behaviour, make-believe play and cannot lie or understand why people should lie
Normal development involves automatically attributing mental states to others and predicting what
they will do from this (theory of mind)
o Reciprocal interaction (sociality): parallel and interdependent development of individuals
and social groups
o Lying is possible, because we have a theory of mind about others
o Secrecy more important than lying for self-boundary development (lying can be imitated)
o Sharing secrets with intimates is an early means of developing connectedness (implies
separate selves)
o Emerging sense of privacy leads to group formation
Keeping ideas inside and inaccessible marks the realisation of the boundary between self and others
Primate groups with greater cooperation also have higher rates of deception
o Cooperation itself permits the evolution of the liar
o Lying works well if liars dont get too common or too brazen (bold without shame), if they
do, the cooperative edifice collapses
o The liar often deceives him or herself as well, possibly to put a more convincing gloss on the
lie
Society depends on truthfulness (an unstated, background condition)
Lies are hard to sustain and prone to backfiring, only a few can always afford to lie when lying is in
their own best interests
Lying confers power on the liar and removes power from the deceived
o Certainty
o Choice
Kant: truthfulness is a duty, no lie can be justified
o Problem: conflict of duties, lying to save life
Utilitarianism: generally not good to lie but there are exceptions
o White lies arguably harmless or beneficial
o Social life: white lies, framing, distortion
o Frankness and truthfulness can cause harm
Withholding the truth
o Risks of treatment therapeutic privilege
o Placebos in research
o Poor performance of colleague (mandatory reporting/whistle-blowing)
o Non-disclosure of medical error
Deceiving and defrauding
o Up-coding
o Medicare fraud
o False certificates
o Exaggerated certification
Confidentiality
o Fidelity (faithfulness by continuing loyalty and support) rooted in psychological importance
of secrets for formation of groups
o Conflict of duties to group (eg. doctor-patient dyad-confidentiality vs duty to third parties at
risk of harm)
o Breaching confidentiality is to break a promise: a form of lying
o Breaching must be minimised to maintain trust
Paternalistic lies: avoidance, evasion, distortion, framing
Would you tell your 89 year-old mother soon to die, that your son has recently been convicted of
paedophilia?
o Problems to consider: issue remains unexplored, false hopes may be maintained, continuing
concealment of real motives
No explicit veracity direction: Hippocratic Oath, Declaration of Geneva, AMA Code of Ethics
Presupposes it: Good Medical Practice (MBA)
o Informing patients of the nature of, and the need for, all aspects of their clinical
management
o Discussing with patients their condition and the available management options
Traditional medical ethos: beneficence minus harm calculus
o Information is an element of therapeutic armamentarium (equipment available to
practitioner) and variable use of information can be used to minimise harm
o Harm minimisation justifies withholding information and bad news
Truth telling more demanded now: autonomy, education, team treatment
Therapeutic privilege strictly limited (Rogers v Whitaker) is not a privilege but an obligation not to
harm
o Exceptional circumstance: nervous shock compensated
In practice: duty of veracity should not always be to tell the bald truth
o Staged disclosure often helpful
o Professional optimism acceptable but there are limits
o Important of cultural differences of patient and family
o Withholding apologies is no longer legally tenable
Certificates/forms: sickness, insurance assessments, death certification, cremation, involuntary
treatment, centrelink, notifications, pathology request forms, Medicare claims, falsification of
research data
o Purposes: statistics, records, entitlements, justifications, safety, accurate diagnosis, legal,
efficiency, fairness
Society licenses doctors to certify a range of things, based on trust in doctors to make judgements
based on medical expertise and professional integrity
Bestowing social power presupposes veracity
False certification is a crime and subject to discipline
o 2007 sympathetic doctor provided 3 international medical students false medical
certificates for absence from classes (absence meant exclusion and loss of visa)
o Fined $20 000 and required to do ethics classes
Excessive certification
o Last 10 years: 70% increase in requests for sick certificates
o Last 20 years: Disability support pensions doubled
o Work absence has detrimental effects on health
Falsification and exaggeration due to patient and time pressure, easier path to follow
Professional requirements: doctors given authority on assumption they will only sign statements
they know, or reasonably believe, to be true, take reasonable steps to verify the content before you
sign and not omit relevant information deliberately and make clear the limits of your knowledge and
not give opinion beyond those limits when providing evidence
Legal actions: tort of deceit, criminal offence (fraud)
Abuse in practice: sickness certificates (back-dating), fraudulent Medicare claims,
Students: attendance records, application for leave and extensions, plagiarism, application for
provisional registration
o Academic misconduct: making a false representation as to a matter affecting a student as a
student
o General misconduct: alters, falsifies or fabricates any document of the University (eg.
altering academic transcript) or documentation that the University requires

Disclosure of Medical Error
Disclosure of medical error is both

o 1. An example of the medical ethical principle of veracity and professional duty
o 2. An element of efforts to increase patient safety
Disclosing error: telling the truth to patients means providing information that is materially relevant
to individual patients
o Ethical and legal requirement Good Medical Practice (MBA) and Civil Liability Act 2003 QLD
Supporting whistleblowers: Whistleblowers Protections Act 1994 QLD: Employees of public hospital
may make public interest disclosure about official misconduct, maladministration, negligent or
improper management of public funds, danger to public health or safety, danger to person with
disability
o Anyone may disclose a reprisal (revenge) which is a crime and a tort allowing damages to be
claimed
Good Medical Practice: Once an adverse event is recognised, doctors are to, inter alia, explain to the
patient as promptly and fully as possible what has happened and the anticipated short-term and
long-term consequences
o But this document is silent on apologies
Australian Commission on Safety and Quality in Health Care, National Open Disclosure Framework
replaces the National Open Disclosure Standard (2003)
o Review of the old one: Evidence suggests disclosure is more effective as an ethical practice
that prioritises organisational and individual learning from error, rather than solely as an
organisational risk management strategy
Elements of open disclosure: open discussion of adverse events that result in harm to a patient
o Apology/expression of regret: I am sorry or we are sorry
As early as possible to patient, family, carers
Must not contain speculative statements on causes of event, admission of liability,
imply legal liability, shift blame or criticise individuals
Where possible, people directly involved in the adverse event should provide
apology or expression of regret
Sincerity = success (skills not always innate, may need practise)
Results of reviews and investigations must not be pre-empted
o A factual explanation of what happened
o An opportunity for patient, family and carers to relate their experience
o Discussion of the potential consequences of the adverse event
o Explanation of the steps being taken to manage the adverse event and prevent recurrence
(learning)
Is there professional accountability??
o Apologies are alternatives to expressions of regret that are not mandated
o Ambiguous between two meanings of sorry:
Sense 1: Apology as an expression of regret, sympathy, sorry
Sense 2: Apology as the admission of fault and accountability, taking responsibility
o National Open Disclosure Framework supports first meaning (no accountability)
o Inconsistent with theme of moving from organisational risk management strategy to an
ethical practice that prioritises learning from error
Open Disclosure policies:
o SA: Expression of regret that does not include any statement of liability or agreement
concerning responsibility for incident
o Victoria: Expression of regret that does not include clear acknowledgment of fault
o WA: Expression of regret must not include any admission of liability or fault
o NSW: Expression or regret or general sense of benevolence or compassion that does not
include admission of fault or liability and neither is it relevant to the determination of fault
or liability in connection with a matter
o NZ: Sincere apology but not about allocating blame, but acknowledge seriousness of adverse
event and distress it causes, has the potential to assist with healing and resolution
Berlinger: Sense 2 apology is acknowledgment of responsibility for an offense coupled with an
expression of remorse
o Technical language/passive voice is confusing for patients and self-deceiving for doctors
(motivated to avoid facing inadequacies)
o Words like complication, untoward event, non-compliance, systems-error shield clinicians
from facing accountability for error
o Contradict medical professional norms on veracity, ignore experience of patient
o Patient suffering as a result of error, demands authentic action to alleviate it

Need for serial elements of honest disclosure, Sense 2 apology, compensation, repentance
and forgiveness
o Beware hindsight bias
o Evidence that proper disclosure reduces litigation, but barriers to belief/action (mandatory
reporting)
o Only people can apologise, even in cases of systems failure
Apology Laws Civil Liability Act 2003 QLD: Allow individual to express regret that may give rise to an
action for personal injury damages without being concerned that the expression of regret may be
construed or used as an admission of liability on a claim for the incident
o Expression of regret does not contain admission of liability on part of anyone
o Apologies that admit or imply an admission of fault
o Protected from admissibility in litigation: QLD, NSW, ACT
o NOT protected: WA, SA, Victoria, Tasmania, NT (but unlikely courts would give significant
weight to an apology admitting fault
o High Court has endorsed principle that admissions of fault are of little relevance to courts
task of determining liability
Gap remains bw patients reasonable needs and clinicians perception of open disclosure
OD rules and Apology laws inconsistent with ethical codes concerning veracity and humanity
Australian OD framework and policies modelled on Sense 1 of apology
Arguments for:
o Adopting Sense 2 of apology
o Coupling apology with compensation (Berlinger)
o Making apology laws uniform across jurisdictions
o Having insurers join the model
o
Patient Safety and Medical Error
X Unsafe health care: Harold Shipman (murderer), Bristol Royal Infirmary and King Edward Memorial
Hospital (paediatric surgery for years with exceptionally high mortality rate), South Western Sydney
Area Health Service, Bundaberg Hospital (Dr Death Patel), Royal Melbourne Hospital (sacked all
nursing educators, mortality went up, reinstated them), Staffordshire UK (no money for anything,
not enough nurses, patients drinking from flower vases)
Example of harm error: medications are most prevalent health therapy in Australia with estimated
1.5 million adverse medicine events annually 400 000 GP visits 140 000 hospital admissions
o 38% readmissions to hospital, 33% ED attendances
o 2-5% drug charts contain prescribing errors
o 5-18% doses medicines administered in error
o 18% IV infusions administered incorrectly (cause death fast)
o Economic costs: patients with +1 adverse events stay ~10 days longer and cost $6800 more
per episode $2b pa nationally
o Even if only 40% preventable, could save $800m nationally
Motivations for Patient Safety and Quality Movement (PSQ):
o Prominent individual and institutional cases: Shipman, Bristol, Patel
o Failures in self-regulation require action by whistleblowers

Large studies of adverse events/medical error (NASA helped us do root-cause analysis and
Harvard studies try to educate patients to report errors they see)
o Variation across systems in implementation and outcomes (initiated different procedures
and rates, also gave rise to EBM)
o Increased litigation and awards (means hospitals must ramp up safety approaches)
o Consumer issues: increased education, dissatisfaction with medical culture, calls for
apologies and disclosure of error
Some historical landmarks: Harvard studies and others (1980s), To Err is Human (2000), Australian
Council for Safety and Quality in Health Care (2000-2006), Australian Commission on Safety and
Quality in Healthcare (2006- ), National Open Disclosure Standard (2003), QH developments, WHO
patient safety curriculum
Terminology KNOW:
o Error: planned sequence of activities fails to achieve intended outcome, not attributable to
chance
o Mistake: incorrect plan/intention
Rule-based mistake: application of wrong rule
Knowledge-based mistake: incomplete or incorrect knowledge
o Slip: correct assessment/plan/intention but slip in carrying out intention
o Patient harm: death, disease, injury and/or disability experienced by a patient
o Clinical incident: event or circumstance that has actually or could potentially lead to
unintended/unnecessary harm to a patient
o Adverse event: clinical incident in which a patient is unintentionally harmed (some harm is
intentional, like in a bone marrow transplant, we know were going to bring the patient close
to death before we can help them get better)
o Near miss: clinical incident which could have, but did not, result in harm, either by chance or
through timely intervention
o Sentinel event: unexpected occurrence involving death or serious physical or psychological
injury, or the risk thereof (eg. baby ill in remote community, asked for a plane but pilot had
already flied amount of hours he was allowed to fly moral distress)
o Human Factors Engineering: area of knowledge dealing with the capabilities and limitations
of human performance in relation to the design of machines, jobs and other modifications of
the humans physical environment (eg. changing location of soap dispenser to make people
wash their hands)
o Root Cause Analysis (RCA): Systematic process whereby factors that contributed to an
incident are identified
o Systems failure: fault, breakdown or dysfunction with an organisations operational
methods, processes or infrastructure (after Dr Patel, had to relook at all systems again,
nothing we had had worked)
Swiss Cheese Model: one lump of cheese may be an individual but for an error to happen, all of the
holes in the lines in the lumps of cheese have to line up (hazards losses), so all system is involved
with Dr Patels failure
o RCA: things have lined up, lets step back and see when error occurred exactly
Harms should be disclosed and apology made, but doctors and hospitals continue to hide or
camouflage errors lack of trust
o Were all going to make mistakes (everyone is human), but you just have to own up to it
o

Errors can harm doctors as well as patients (the second victim)
Codes of Ethics (Good Medical Practice) deal with error and disclosure
Few adverse events result from negligence, professional misconduct or malicious intent
Blameworthy acts: intentionally unsafe, alcohol/drugs (addicted healthcare workers, nurse
black market), abuse, crime
o Whistleblowing: being prepared to risk personal interest for greater good
Medical errors happen as they are necessary for human learning and adapting, medicine is complex
and often uncertain, result from the system (inadequate training, long hours, ampoules look the
same, lack of check systems) and health care has lagged behind other fields in safety development
Case study: Baby Ryan
o Wrong diagnosis of mumps after 4 days ambulance to Emerald hospital (exonerated)
doctors unable to diagnose medivaced to Rockhampton Base Hospital conversations bw
Emerald, RBH and RCH (variable recollections of conversations) ultrasound requested by
delayed by on call requirements (paediatrician busy) Dr R1 didnt read chart from
Emerald or his own RBH ED verbal handover to Dr R2 didnt read notes or talk to
parents Dr R2 (registrar) thinking could be bacterial, wanted blood culture, Dr R1 says no
need and overruled nursing staff failed to rescue Ryan too ill for surgery anti bx
started late nurses busy (poor staffing) urgent transfer to RCH ICU RIP
o Nurse recommended toxic work up, IV fluid and empirical anti bx
o Dr R2 recommended fluids, triple anti bx, n/g tube and surgical consult
o Dr R1 refused morphine may mask source of pain
o Need for graded assertiveness? Where registrar takes on doctor You should do this!
o Nurses if doctor doesnt respond to your issues, you ring higher
o Junior doctor need to alert others, document very carefully what youve done, get others
on your side, think whether you should just do it, you should listen to nursing staff, ask them
how to get around your senior doctors
o Coronial findings: incomplete history, no septic work up or anti bx, poor pain management,
failure to examine between war round at 9am and surgical review at 6:50pm
Responding to error and increasing safety
o 1. EBM
What is the evidence base for the tx given?
If child in pain, giving morphine will inhibit your diagnostic ability (not a lot of
evidence, just an oldschool idea)
o 2. Improving communication
Graded assertiveness needed! Need to come with greater communication skills to
manage diagnosis and tx plans youre unhappy with
o 3. Building safer healthcare systems
A: Principles, policies and procedures
Focuses on fixing systems, not blaming individuals,
Importance of collection, analysis and dissemination of data not just oh an
error we need to fill out another form, but we are missing an error that is
being made
Managers creating a just, reporting culture so whistleblowers dont feel like
their promotion is compromised and respect for all staff levels
Training, feedback on recurrent errors, protocols
o
o
o
o
o
o
o
Acknowledge responsibility for error, disclose, apologise

Lessons learned will reduce chance of recurrence
B: Monitor, count and analyse carefully
Death certificates as sentinel markers
C: Systems improvements
Checklists, medical records, safe prescribing systems and checks, mortality
committees, team approach, safe hours, investigating error (RCA)
Specific issues: handwashing, pressure sores, handover, nosocomial
infections
4. Making individual doctors safer
Education, CME, revalidation? (every 5-10yrs sit board exams again), individual
performance data, mandatory reporting, clinician improvement (CLiPPS), medical
board monitoring, human factors research
Old medical board has been sacked, new one has mandate to clear up mess some
doctors on the books for years with nothing done about it, more lawyers than
doctors on Board now
5. Challenging the medical culture
Hierarchies and bullying, role models, hidden curriculum, duty culture, aspirations to
perfection, inappropriate delegation, blame and shame, communication, team
approach
6. Support informed decision-making
Provision of information that is materially relevant to patients
Ethical and legal requirement GMP MBA and Civil Liability Act 2003 QLD
7. Disclosing error and apologising
Scripted by Queensland Health: admit regret but not liability
Australian Commission on Safety and Quality in Health Care National Open
Disclosure Framework 2013 and Apology laws
8. Working with patients and action groups
Medical Error Australia tell us your secret
9. Providing performance data
Individual doctors?, hospitals, league tables and their discontents
10. Supporting whistleblowers
Raising concerns about misconduct within an organisation or within an independent
structure associated with it
Bringing an activity to a sharp conclusion as if by the blast of a whistle
The last resort: has been necessary, should be rendered obsolete
North Western Sydney Camden and Campbelltown, Canberra and King Edward
Memorial Hospitals have all had sig probs with quality and safety no
uncovered/resolved by accreditation or national safety and quality processes
Exacerbated by poor institutional culture of self-regulation, error reporting,
investigation
Even after substantiation of whistleblowing, little respect was received or support
from profession
Whistleblowers Protections Act 1994 QLD

Findings or reports into Bundaberg Hospital: everyone getting sacked, need for more
accessible, responsive and patient focused complaints system
Medical Practitioners accreditation system did not adequately ensure the quality of
the health system created HQCC
Badly administered and insufficient funds, poor credentialing, clinical privileging and
performance management, culture of concealment
Health Quality and Complaints Commission provides for:
o Oversight and review of, and improvement in, quality of health services and independent
review and management of health complaints
o Commission may make standards that relate to any aspect of quality of health services
including safety, clinical and cost effectiveness, patient focus, public health, facilities and
governance and review of deaths in hospitals
o Will be replaced by the Health Ombudsman later in 2013

Ethical Issues in Medical Education
Interactions with colleagues: ethics/etiquette, didactic teaching didactic medicine

Medical culture and medical students: negative role modelling, abuse, hierarchies and boundaries,
UQ Student Integrity and Misconduct Policy
Admission/selection criteria: can prospective students be screened for attitude/ethics/conduct,
participation, academic performance and compassion?
o Selection methods: OP/GPA, UMAT/GAMSAT, Interview, mini-CEX, psychometric testing,
testing for ethical position
o Teach differently to those disadvantaged diff teaching methods for Indigenous populations
Resource and equity issues: what is an appropriate cohort number? Is the student-teacher ratio
adequate? Should anatomical dissection be simulated if it is equally effective? Should acting as
surrogate patients for examinations be mandated (now get volunteers)?
Curriculum: should academics promote their own work, books, articles? Should ethics teaching
encompass Eastern and Western traditions? Should we have more inter-professional learning (IPL)
putting OTs, nurses, physios together for ethics courses? With small class sizes, found v effective to
combine classes. More task substitution?
Intimate examinations: what principles/conditions should govern student participation? Should
anaesthetised patients be subjects for intimate examinations (concerning DREs, consent vs huge
public good in having well-trained doctors)? Should newly dead pts be available for intimate
examinations? Should patients be required to be subjects?
o Medical hierarchies: Thank you for this opportunity, but University of Queensland says I
cant do it
Resident recruitment and allocation: ballot? What priority should domestic students have in
allocations (hospitals under tight budget programs and are unsure of numbers they can take)? What
effects should family or business/work commitments have on allocation priorities? Work straight
with GPs (why do we go to hospitals first)? Should there be new medical schools (oversupply)?
Teaching for international cohorts: how close should education be to their home country? Should
aspects of cultural diversity be taught?

The Overseas Elective: Purpose or Picnic?
Personal and professional pitfalls and errors must be avoided during the elective
Utilitarianism: considers whether more people benefit from an action than are harmed by it
Kant: categorical imperative provides counter position that humanity should be seen as an end in
itself, never merely as a means so using any one person is unacceptable
Issues:
o In countries where healthcare provision is extremely scarce, may be pressures to exceed
your role
o Do not diagnose illness, prescribe, or administer treatment without strict clinical supervision
o You may not understand dangers of tx, particularly in countries where medical problems are
complicated by extreme poverty (eg. dehydration)
o Can do more harm than good
Your obligations:
o You must disclose your level of training and not act beyond your capabilities to maintain this
trust
o Recognise your limitations
o Misconduct and maltreatment of any patient, regardless of status, is of consequence
Considering dire needs of some communities should we bend the rules?
o No unless patient require immediate care to save their lives (emergency is a very different
matter), here students expected to act as good citizens and do their best, but not under
pretence of being qualified doctors
Procedural basics:
o Identify who you are: patients must understand medical students are not qualified doctors
o Consent required: before taking case history/examinations, in writing before going under
general anaesthetic and verbal consent for treatments and procedures not requiring
immediate supervision should only be undertaken if there is recorded evidence of
competence
Confidentiality: patients should understand students may be obliged to inform a responsible clinician
about information relevant to their clinical care and teachers responsible for ensure these guidelines
are followed
Professional boundaries: protects the space between the professionals power and the patients
vulnerability
o Exist for our protection
o Ensure appropriate behaviour and keep us from offending others
o Enables us to do the job and not be overwhelmed
o X Bring cake to good looking guy after he left trauma bay
o X Yell at father and take baby to hospital
o Have greater responsibility in the relationship to ensure the boundaries are clear and
respected
o Shows respect for autonomy, beneficence and a desire to act non-maleficently
Power differentials exist in any professional situation in which the provider has knowledge,
experience and authority that the patient seeks and needs. This can also exist bw senior and junior
team members
Boundary violations imply harm to the patient and occur when therapeutic boundaries are crossed,
characterised by role reversal or secrecy where professionals needs are being met rather than the
patients If there is a social issue, I will pass it on, as that is beyond my scope of care
Sexual relationships with patients cannot be justified, are abusive and inherently harmful for the
patient involved (medical tribunal DO NOT like this, despite events)
Therapeutic relationship: interpersonal relationship that is professional, therapeutic and used to
meet the needs of the client more difficult to be objective about care if becomes a friendship and
can be draining to yourself
Respect for dignity, welfare, rights, beliefs, customs takes precedence over expected benefits of
knowledge (if you have a patient youre practicing on and its not working, stop trying and pass it on)
Ethics laws are not internationally interchangeable, must be aware of laws involved in medical
practice in jurisdiction you are visiting (can be guilty until proven innocent)
Travelling with pharmaceuticals: if subsidised under the Pharmaceutical Benefits Scheme, must
contact the embassy of country you are visiting to ensure medicine is legal there, carry a letter from
your doctor, leave in original packaging clearly labelled with your name and dosage, take current
prescription as a backup
o Sending PBS medicine out of the country may be illegal
o Taking PBS medicine out of the country may be illegal
Physical: HIV prophylactic kit, immunisation against infectious diseases, beware of drinking water
and food safety, beware of gender-related safety issues
Mental: have someone you can confide in and debrief with
Medical Journal of Australia:
o 1. Recognise patients rights are universal: privacy, confidentiality of their medical
information, consent to or to refuse tx and be informed of risk of procedures
o 2. Put your host communitys interests first: gap that needs filling?
o 3. Give local trainees priority: your supervision and training should never be at the expense
of local trainees
o 4. Emphasise education: capacity-building element to all of your professional activities
o 5. Long-term sustainability: promote local ownership and self-reliance
o 6. Do not use developing world for practising your skills: not guinea pigs on which to hone
your skills. If you wouldnt do it back home, dont do it abroad
o 7. Practise quality medicine: aim to provide highest standard of care to the greatest number
of patients, be creative if under resourced and use local colleagues to guide you towards
best decisions
o 8. Know your limits: never expect to have all the answers
o 9. Have a focus: what are you interested in seeing and doing
o 10. Consider the broader implications of your presence: first do no harm
Research ethics: values (spirit and integrity) we are trying to bring when going into the developing
community (reciprocity, respect, equality, survival and protection, responsibility)
Institutional responsibilities:
o Host: adequate clinical supervision, security against risks to student health, avoidance of
exploitation of student if resource deficiencies, reasonable expectations, adequate
accommodation

o
SOM: assurance regarding host facilitys ability, adequate preparation, provision of security
processes (contacts, procedures, evacuation advice)
Consent for Minors
Adults considered competent unless proven otherwise, even if against interests (Mill)
Young children are not competent or autonomous unless proven they are (opposite)
Parents have decision-making rights over children but must be in best interests
Parental authority can be overturned in cases of child abuse, parental incompetence/neglect,
parental insistence on futile tx, blood transfusions for JW children
Parens patriae power of courts: exercised on behalf of communitys interest in childrens welfare
and open future
Recent social and legal change:
o Realised adolescents cognitive development, competence is gradual process, not single
event
o Legal majority went down to 18yrs to vote
o Responsibilities < 18yrs for driving, medical tx sought, sexual activity, criminal intent and
punishment
o Medicare card at 15yrs
Mature minors: need for privacy, strong identification with peers, rejection of parental authority
(trying to become indept), assertion of capacity for responsibility, decision-making competence in
some contexts BUT continuing dependence on parents (but lack awareness/acknowledgment of this)
o Conflicting opinions within legal and social science circles about:
Level of decisional capacity in adolescents (underdeveloped sense of responsibility)
Recent US Supreme Court criminal judgements contrary to previous medical rulings
(unsure when adolescents can make decisions and be responsible for them)
Developments in psychology and brain science continue to show fundamental
differences bw juvenile and adult minds involved in behaviour control questions
competence and decision-making capacity of adolescents
2 kinds of autonomy:
o 1. Occurent: technical competence, continuing family life/goals
o 2. Dispositional: experience
o Children have positive rights (not as much negative rights), need protection from impulsivity
and risk of being abandoned to occurrent autonomy
o Is cognitive competence (occurent autonomy) sufficient for health decisions?
Maturation principle: right of parent to decide in childs best interests ceases on childs achievement
of decision-making capacity
o Rights of parents to control children exist only for benefit of children, emphasis not on
parental rights, but on responsibilities for childs welfare
o Rule for mature minors usually also qualified by a best interests test, for both consent and
refusal
Law Reform Act 1995 QLD: Minor less than 18yrs in all states of Australia
o Common law right of minors to give consent based on understanding of nature and
consequences (technical competence occurent autonomy)

No QLD statute, Family Court can intervene in disagreements
SA: Consent to Medical Rx and Pall Care Act 1995 minors more than 16yrs can consent to
or refuse treatment BUT cant have AHDs until 18 if competent and treatment is in best
interests and supported by doctors
o NSW: Minors (Property and Contracts) Act 1970 Parents and guardians can consent if
minor aged less than 16yrs, BUT minors aged more than 14yrs con consent to tx as if they
were aged 21yrs (2 years where both parents and child can consent or refuse as well)
Gillick case (UK 1986): similar Westminster legal sys, no Australia consent cases (some refusal),
Gillick approved by High Court of Australia in Marions case
o Gillick ratio: Minor can consent to medical tx once they have achieved a sufficient
understanding and intelligence to enable him or her to understand fully what is proposed
Court said mature enough to consent to receive contraception less than 16yrs
Fraser guidelines: Restricted to providing contraceptive advice not providing contraception will not
stop her having sex but increase risk of pregnancy. Encourages minors to approach clinicians and
trust in confidentiality
o 1. Doctor assesses competence: Gillick-competence
o 2. Doctor cannot persuade minor to inform parents
o 3. Minor is likely to pursue intercourse whether or not contraception is provided
o 4. Without contraception, minors physical or mental health is likely to suffer
o 5. Minors best interests require provision of advice/contraception without parental consent
Axon (privacy and confidentiality Right to know): single mother challenged UK Health Dept
guidelines, wanting right to know whether daughters under 16yrs were seeking contraceptive advice
o +ves: trust, transparency within families, need for parents to have knowledge in order to
carry out responsibilities for guiding children, Gillick only addressed contraception but this
included abortion
o ves: mature minors right to privacy results in reduced rates of pregnancy, abortion and
STDs through confidence in medical attendance, law back this, some sexually active minors
at risk of abuse, parents not best to provide advice in this area
o Decision: imp for confidentiality to be maintained within therapeutic relationship, so dont
place girls at harm public interest in disclosure to parents outweighed by public interest
in maintaining minors confidentiality (rights parents vs rights girls)
Consent and confidentiality are linked
Gillick principles apply generally to sexual health services
Gillick decision compatible with EC conventions on human rights of the child
o Conditions (Fraser guidelines): in cases of advice on contraception/STDs, minor is likely to
begin/continue sex and without advice, minors health likely to suffer
Current basis for legal consent KNOW:
o Mature minor test of Gillick (condition 1): Gillick competence
o Mature minor test approved by high Court of Australia in Marions case 1992
o Need to try to persuade pt to involve parents in decision (condition 2) was NOT specifically
included in HCAs endorsement of Gillick for Australia not law to try and involve parents
but do try to, particularly in serious procedures
o Recent English cases of overriding minor decision:
1. Court ruled parental consent could overrule a Gillick-competent minors refusal of
tx
o
o

2. Court ruled where refusal of tx was likely to result in serious injury, it could be
overridden by court (16yrs anorexic patient decision not to have tx was overridden
let children make positive decisions in no great risk but courts will step in if children
are refusing life-saving tx)
Cases have been criticised as being inconsistent with the mature minor test of
Gillick, and offending autonomy of these minors (patients)
R v M 1999: mature 15yrs girl who had chronic disease for a long time refused heart transplant, felt
depressed at thought of taking tablets forever, preferred death, didnt want someone elses heart in
her body
o Heart transplant authorised due to sanctity of life (only stop when life would be so
intolerable and pain so great, would consider it being a life not worth saving) and best
interests, acknowledged resentment of patient and did not dispute patients competence
overrode competent refusal
o If she was 18, her decision would have been respected
Marions case 1992: decided would be in disabled childs best interests to sterilise her, would cause
emotional imbalance for her to go through puberty and she didnt have competence to even think
about having a family, would be smaller and easier to manage
o Parent authority ends when child gains sufficient intellectual and emotional maturity to
make informed decision, this case suggests the contrary, inconsistent with Gillick
o Also stated that consent of guardian could not override refusal by competent child
o Suggested that in Australia, there would be closer symmetry of consent and refusal for
minors
Minister for Health v AS 2004: JW child refused post-chemotherapy transfusions, supported by JW
parents, transfusion was authorised under parens patriae powers, even though child was competent
o Even if competent, cant refuse lifesaving tx, comes back to Sanctity of Life argument
o Doctors could have treated him under Human Tissue and Transplant Act 1982 without court
order
Three other Australian cases have either overridden a minors competent refusal of tx or made
statements consistent with this
Tension bw obiter statements by HCA in Marions case and other cases
Four refusal cases:
o Re M 1999 UK: 15yrs refused heart transplant, although found not Gillick competent, would
have been irrelevant adopted decision of Donaldson and Balcome in re: W that court had
power to override irrespective
Whatever that risk may be in overriding the childs decision, it has to be matched
against the certainty of death if they did not receive the transplant
o Dennis Linberg (2007): Leukaemia requiring chemotherapy and blood transfusions
refused court UPHELD right to refuse died not consistent
o Hannah Jones: Leukaemia requiring chemotherapy refused heart transplant parents
supported decision hospital threatened legal action (then spoke to her and recognised
this was what she wanted, said they wouldnt take her to court she changed her mind
consent happy and well in 2013
o Sydney Childrens Hospital Network 2013: 17yrs JW with Hodgkins Lymphoma needed
chemotherapy (with suboptimal, lower dose to stop developing anaemia) 3 months
remission came back aggressive, needed more dose + platelet hormone demonstrated
clear competence very mature minor Professor txing was happy with teenagers
decision but third party (medical director brought to court Court ordered to give platelets
and ancillary (involuntary) tx if required
Even with transfusion, survival 40-50%
Has right to refuse once turns 18 in 10 months
Highly intelligent. Said he wants to be responsible for what went into his own body.
Described him as the leader of the team and of his parents. Very mature minor. But
the sanctity of life in the end is a more powerful reason for me to make the orders
than is respect for the dignity of the individuals. Not a case of Gillick competency.
Still a child, although a mature child of high intelligence fell under jurisdiction of
parens patriae
Confidentiality (Axon): generally follows attributed competence, including mature minors
o Endorsed in Axon on basis of encouraging seeking of medical care
o Therapeutic role: helps ensure follow-up, allows time for involvement of others
o Problems: too individualistic, doesnt allow family involvement, concerned parents left out
of the tx loop (child with mental health 14-15yrs, parent might not know tx regime)
o Abandoned bill: Proposed Health Legislation Amendment (Parental Access to Information)
Bill 2004 to raise age from 14 to 16 at which parents could access childrens Medicare
records longer time can see medical records
Abbott: Parents have a right to know whats going on in the lives of their children
Opposed by AMA on basis of interference with doctor-patient relationship, need for
young people to form trusting relationships with doctors and confidentiality
engenders regular medical contact (more imp)
o NT: mandatory reporting laws, minors under 16yrs Care and Protection of Children Act
everyone including doctors obliged to report anyone seeking advice on contraception, STIs
or abortion, even if no risk of harm perceived
Opposition from AMA: what do you do with that information?
Care and Protection of Children Act amended
Health practitioners not obliged to report sexual activity in adolescents aged 14 or
15yrs, where the age difference bw sexual partners is two years or less
1996 recommendations
o More than 16yrs: tx as adult if competent
o 12-15yrs: consent if competent, informed, health care in best interests (usually for positive
rights and not so much for negative rights)
o Less than 12 yrs: parental consent required
o Contraception: given in best interests, even if not competent
o Confidentiality always follow competence
Intersection with Criminal Code: X carnal knowledge with or of children under 16, indecent
treatment of children under 16 guilty of an indictable offence
o Minimum age for consensual intercourse is 16 (due to nature of the act and the lack of
maturity in relation to it), arbitrary age enforced by Court without reference to consent from
the minor (assume under 16 is non-consensual as minors cannot consent)
o Suggests that doctor should not prescribe contraceptives to minors on pain of aiding and
abetting carnal knowledge BUT age difference taken into account and prescription in best
interests of pt, particularly when minor is clearly intent on having intercourse
Health Legislation (Restriction on Use of Cosmetic Surgery for Children and another Measure)
Amendment Act 2008: Offence to perform a range of cosmetic procedures (nonmedical tattoo,
surgery, female circumcision) on a child unless doctor believes it is in their best interests (childs
maturity, parental views, congenital abnormality or physical defect, benefit psychological health or
could be delayed into adulthood)
Public Health Act 2005: Minors cannot consent to purely cosmetic procedures, even if they are
competent
Critique of current legal situation:
o Courts have been reluctant to uphold competency of minors to refuse psychiatric tx
o Cases supporting mature minor principle have involved prevention of teenage pregnancies
(reflecting social desire to end this as much as attributing competence to minors)
o Asymmetry bw consent and refusal by minors form of medical paternalism
o Sliding scale of competency is incoherent (for adults just is or isnt)
o Medical law inconsistent with other areas of law
o Psychological research shows disparity in competence bw 9-11 and 13-15, not later
o Best interest should include emotional and psychological as well as physical
o Parents should have right to provide direction to their developing child
o Focus should not be on medical knowledge but minors understanding of right to make
medical decisions (acceptance of risks and broad understanding of tx)
o Increases demands in relation to demonstrating competency
Shouldnt burden children with complete autonomy
Concept of Gillick competence is to include minor in decision-making, to improve tx
success through cooperation of the minor
Introduction to Mental Health Ethics and Law
Mental Health Act 2000 Current: a condition characterised by clinically significant disturbance of
thought, mood, perception or memory
o Exclusions: intellectual disability, substance abuse alone, weird opinion, race, sexual
preferences, antisocial, illegal behaviour
Psychiatric diagnoses rely on behaviour descriptors and are more controversial than organic
diagnoses that are threshold-based difficult to distinguish natural dysfunction from that which
is chosen as behaviour is arguably subject to our control
Nature and effects of psychiatric diagnosis:
o Diagnosis is a great power and privilege (be careful!)
o Personal, social, financial (lose job, lose children, less insurable)
o Evaluative: stigma (devalued as less-human), scope (we think we have control and mental
disorder is something you can choose, attributing blame for having the mental illness)
o Medicalisation/commercialisation (eg. premenstrual dysphoric disorder)
Assurance of human rights: balance bw deprivation of right to liberty and all other rights still
maintained (including right to adequate tx) retention of rights and dignity under involuntary
detention
o Minimal restraints compatible with adequate tx
o Review appeals by the Mental Health Tribunal (not part of QCAT) mainly deals with
involuntary detentions and when patients dont believe they continue to be required to be
involuntarily detained and protect their continuing rights
Normalisation of tx:
o Doctor-patient collaboration on tx plans: involve them as you would other pts
o Simultaneous management of other medical problems: we have tendency to focus on
mental illness and forget other procedural tests we do for all other pts
o Other txs subject to usual requirements (including consent)
o Community tx opportunities: liberty issues, resourcing problems (not successful)
ITO: Involuntary Treatment Order
CTO: Community Treatment Order (pt goes from hospital to community setting still
under strict supervision and surveillance)
Assisted Reproductive Technology, Ethics and Policy
Australia: born alive rule so foetus have no rights

Moral status of embryos determine thinking about rights they may have
Jewish: born alive as well, though crime to destroy a foetus but not equivalent to murder
Catholic (Canon): from point of conception says embryonic stem-cell research is related to
abortion, euthanasia and other attacks on innocent life begins at conception
US: Embryo under special respect but may be used and destroyed in worthwhile research
protocols. Scientists agree that embryos should not be cultivated beyond 14 days development
Health Care Policy
o 1. Health System
Aims: promote, restore, maintain health of individuals and populations (equity)
Participants: Gov organisations (eg NHMRC), courts, tribunals, AMA, specialist
colleges, allied health, NGOs, private health, nursing homes, community, voters
o 2. Objectives of the health system
High quality care to restore and improve health (minimum health standard we end
up tiering and prioritising health care)
Equity and universality of care
Decent minimum in a 2-tiered system
Reduce costs, maximise efficiency
Protection against individual financial ruin from illness
o 3. Health policy
Types:
Distributive Commonwealth funds to States
Redistributive Medicare levy
Regulatory Health Acts public health policy
Self-regulatory Professional bodies, laws, Royal College, National
Regulation (Health Practitioners) National Law Act 2010 QLD
Broad influences:
Political, ideological, economic (competition policy)
Historical, cultural changes (loss of religious dominance more access to
abortion, contraception)
Tech advancement (Medicare rebates for efficacious things)
Consumerism expectations and education
Perceptions regarding status as diseases (fertility, medicalisation)
Failures in existing policies

Factors influencing definitive policies:
Council of Australian Governments (COAG)
Legislation (Competition and Consumer Act 2010)
Professional association guidelines (AMA)
Lobbying by Royal Colleges
Guidelines and policies for use of things promulgated by agencies (NHMRC)
Research policies of research bodies, universities, advocacy groups
(Australian Consumers Association)
Academics, commissioned research and reports, court decisions
What role should public opinion play in bioethical issues? (44% thought early embryos have a brain
and 21% thought embryos can feel we dont know for certain)
Gone from society heavily governed by religion (70-80s) to shared consensus and public consultation
(Lockhart committee report found most though abortion wasnt a good idea)
Recent issues (end of life):
o Advance care planning, substitute decision-making
o Withholding/withdrawing life-sustaining tx
o Artificial nutrition and hydration
o Palliative care and passive euthanasia
Assisted Reproductive Technology issues (beginning of life):
o Infertility and IVF
Social (non-medical) infertility and discrimination
Is infertility a social construct (feminist) or true disease
IVF funding, equity (85% Medicare, though some people have accessed it 37x)
Distinction bw research and therapy
o Embryo experimentation
Moral status storage, disposal, research on excess (X 14 days)
Therapeutic cloning and embryonic stem cells
o Gamete donor identity: anonymity vs availability
o Prenatal genetic diagnosis and sex selection: disability critique
o Posthumous conception and consent, surrogacy (Surrogacy Act 2010)
QLD: NHMRC Guidelines and Fertility Society Code
Vic, SA, WA, NSW: statutes governing IVF
o Regulatory body issues licenses to provide ART
o Vic: No sex selection (apart from X-linked disease) or posthumous conception
o WA: No PGD until 2004 amendment
o NSW: quality of access to lesbian women
Assisted Reproductive Treatment (ART) Amendment Bill 2012: IVF available to lesbian couples and
single women, allowing equality of access
Issues: lack of response and uniformity
o 1. Heerey Review (new 2010) of cloning and embryo research legislation government yet
to respond to this one
o 2. Lack of uniformity: donor anonymity (Vic can access, everywhere else need consent of
donor for access to identity)

Funding and equity:
2000: Medicare made unlimited subsidised IVF cycles
Success rates with better technology
Out of pocket costs still high, but Medicare safety nets
No rationing criteria
2009: Capping of Medicare safety net rebates
No public IVF in QLD but small public units elsewhere
2002: COAG Agreement for nationally consistent pre-emptive legislation
o Research Involving Human Embryos Act 2002
o Prohibition of Human Cloning Act 2002
Therapeutic cloning (harvesting bone marrow, saviour sibling) prohibited (not
prohibited in UK and other countries alleged brain drain)
Lockhart Report (2005) Recommended therapeutic cloning on embryos but not on
foetus (dont allow to progress into development)
o Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo
Research Amendment Act 2006
o QLD mirror: Researching Involving Human Embryos and Prohibition of Human Cloning Act
2003
New licensing committee of NHMRC regulates research using excess IVF embryos (2013)
o Aims to review PGD, sex selection and surrogacy in near future
NHMRC (National Health and Medical Research Council) issues:
o 1. Sex selection and PGD
PGD must not be used for preventing non-serious conditions, sex, selection in favour
of a genetic defect or disability
X family balancing
Illegal in Vic, WA and SA though this is under review
o 2. How many embryos?
1996: Non-therapeutic research involving destruction of embryo should only be
approved in exceptional circumstances, requires:
Likelihood of sig advance I knowledge or improvement in technologies for tx
as a result
Research involves a restricted number of embryos
Gamete providers and spouses have consented
2007: Licensing Committee must ensure number of excess ART embryos is restricted
to that likely to be necessary to achieve goals of project
Fertility Society of Australia wrote RTAC Code of Practice for ART Centres that covers patient
information and consent, counselling, clinical and lab standards, training, accreditation
Court decisions:
o 1. Equity of access: single mother in Vic Infertility Treatment Act 1995 limited ART to
married or stable defacto couples (even sexual criminals could access it) inconsistent with
Sex Discrimination Act 1984
o 2. Posthumous conception cases: Vic, NSW, QLD generally rejected be courts on basis of
lack of explicit consent and best interests of children prohibited by 2007 ART guidelines
o
Preimplantation Genetic Diagnosis, Disability and Discrimination
Issues:
o 1. Medicalisation of disability
o 2. Social status of disabled people and discrimination
o 3. Influence, coercion by society, medicine on decision
o 4. Eugenics: breeding out particular characteristics to create a perfect race
Stages of decision-making: prenatal screening, prenatal genetic diagnosis, antenatal (CSC,
amniocentesis, foetoscopy)
Expressivist objection: Prevention of disability implies that disabled children ought not to have been
born and it is better to eliminate them than accommodate them
o Saying lives not worth living ?
o Assumption that disabled children will not fulfil expectations of parents
o Status is undesirable and burdensome
Responses to expressivist objection:
o 1. Disability, NOT the disabled person, is disvalued
Preventing disability doesnt imply current lives arent worth living
Just because were trying to do something, doesnt mean we are devaluing disabled
people
Foetus is not the same as a disabled child who is a person
Most that can be said is one might feel offended by idea and practice of preventing
disability
By extension, may be offensive (but not immoral) to have healthy children by taking
folate and having a good diet
o 2. Objecting to selection decisions implies objection to prevention of disabilities in all
settings
So expressivist objection must depend on disability being at least partly identity-
constituting
But all preventive and corrective decisions (like taking folate to prevent spina bifida)
reduce number of people with disability and so these must also be negative
judgments about the disabled
o 3. If PGD did = discrimination, outweighed by benefits to families avoiding burdens of
disability and value of reproductive autonomy
o 4. Concept of disability is socially constructed, caused by social oppression and
discrimination and medical power to label and define
a) Absolute social construction: would undermine and prevent any resources for
social support for the disabled. Disability rights advocates usually accept termination
of lives which will have very serious disabilities. Having a greater number of
disabilities would be neutral with respect to consensus on negative value of
disability, which is counterintuitive
b) Relative social construction: encourage greater social change and acceptance BUT
what should balance inclusion of disabled vs infringing interests of non-disabled (eg.
aid their rights but dont reduce their chances of gaining access to medical
resources)

o
5. If you desire a health child, does that mean you wont desire that child if it has some sort
of disability?
Some parents will cherish, other parents wont want child

6. Intention to have a healthy child doesnt mean were saying no disabled child should live,
because a lot of us are here by parents having accidents, werent planned for, and parents
dont necessarily love us less
Still, prospective desires for healthy children imply there is a class of people who
should never have lived but many people should never have lived they were not
the first choice of their parents, but once born, are cherished
o 7. Compatible statements:
1. There world would be a better place if no one was disabled and
2. The world would not be a better place if disabled person X did not exist
For exams, know broad arguments behind each and exchange disability=smokers just because we
dont like smoking doesnt mean we think you should kill all smokers
Medicalisation and routinisation:
o Constricts choice between neutral options
Technological imperative: This technology exists (scan) so I may as well have one. In
fact, it would be irresponsible of me not to
Consumerist perspective: I couldnt put a baby into Pumpkin Patch if it had Down
syndrome
Authoritative knowledge: I dont really believe Im pregnant until the doctor says I
am tends to leave it up to doctors to provide advice and make decisions
o With PGD, feel insufficient time and information to reflect on decision
o Termination of pregnancy decreases in Down syndrome if adequately informed and
discussed decreased with diagnostic screening and talk through potential of a disability
occurring
o Variation in prognostic significance of markers
o Marxist approach to quality control and production: I need to make certain the baby is
normal They need to be the best they can be
o
o
o
o
o
o
o
Non-directive counselling is good: directive counselling (blunt and opinionative) argued to be

unethical, this was is structural pressure, not open choice, still shaped by your ideas but less coercive
(talk about favoured option longer and first)
Counselling of PGD:
o Pre-procedure: Inherent expectation of deserving a normal baby, already identifying foetus
in child-like terms
Verbalised understanding of the possibility of identifying abnormality
Explain background risks, risks of procedures and protocol for results
Assumption that if you have the test, you will have a TOP
o Post-procedure: Now that you know, do you have to have a termination? Have to explain
time frames (easier earlier)
Never really prepared for a positive result wishful thinking
Risks for subsequent pregnancies
o Cases:
Father adamant baby would be a useless backhoe operator without 2 functioning
hands = TOP
Consumerism: man received promotion overseas, mother decided wouldnt suit
them to have a baby
Mother to give birth to dwarf was at risk of suicide, had a late term abortion
o Now late term abortion is only available if mother is at risk, still carried if has a severe
disability that is not life-threatening always relates to mother as foetus doesnt have a
right yet
Recent advances in testing:
o Non-invasive first trimester blood test reliably detects Down Syndrome (reduction in false
positives)
o Only chorionic villus sampling and amniocentesis can rule out genetic abnormalities
o Ultrasound and hormonal assay (11-13 weeks), Maternal blood test measuring foetal cell
free DNA
Eugenics
o Non-directive counselling contradicts prevention
o Absolute non-direction would countenance selection for serious disability
o Old eugenics: sterilisation and elimination (killing)
o New eugenics: same goals via medicalisation, prevention of different diseases, reproductive
autonomy
o Obligatory eugenics: obligation to have the best child you can (Savulescu)
o Disability advocates prevention of lives not worth living
Sex selection ART Guidelines by NHMRC: PGD restrictions
Functional impairment is natural, not cultural or artefactual
Critical view: supports bringing seriously disabled people into existence, and not correcting existing
disabilities, on pain of inconsistency
Desire for healthy child does not discriminate and is unrelated to unconditional love for a disabled
child, prevention decisions=preventive antenatal drugs, doesnt mean making a value statement of
lives that are in existence
In-built directiveness is based on social-medical-preventive-public health understanding but

informed consent requires improved technologies


Ethical Dilemmas in Antenatal Care and Intervention
Issues concerning maternal consent for antenatal interventions, and contrasting professional
obligations we have to mother and foetus
Conceiving the nature of the mother-foetus relationship:
o 1. Two discrete entities
o 2. As one entity, with the foetus being a part of the mother
o 3. Not-one, but not-two relationship (half/half)
Legal status of foetus: duty to the unborn child and the child that the foetus will become (medical
and parental duties)
Legally enforceable maternal ethical obligations to refrain from behaviours harmful to the foetus
Operation of negligence in the antenatal situation
Refusal of tx:
o Normal case: competent adault has right to refuse tx
o Antenatal case: will have effect on foetus (and the child to be born)
o Foetal welfare dept on: mothers behaviour and decisions, medical expertise and social,
ethical and legal frameworks
Homicide: criminal law, must prove intentional
Manslaughter: causation shows death, no intention
o Assault of pregnant woman baby born alive baby subsequently dies
o The foetus is not a legal person (cannot murder/manslaughter) BUT if born alive and
subsequently dies still as a result of assault to pregnant woman manslaughter
Late foetus attributed significant status
US some states: foeticide included in homicide (foetus is a legal person)
Queensland Criminal Code:
o About to be delivered Any person who prevents the child from being born alive by any
act or omission of such a nature that, if the child had been born alive and had then died, the
person would be deemed to have unlawfully killed the child, is guilty of a crime and liable to
imprisonment with hard labour for life (child destruction)
o Hurts late foetus Any person who unlawfully assaults and destroys the life of, or does
GBH to, or transmits a serious disease to, the child before its birth commits a crime, max
penalty imprisonment for life
o Incompatible? A child becomes a person capable of being killed when it has completely
proceeded in a living state from the body of its mother
o Most TOP at earlier stages (grey in the middle)
US 2 entity model: Mother who ingested cocaine during pregnancy was criminally liable for child
neglect when baby born with cocain metabolites (foetus is legal person)
o Other US states child protection laws allow action to be taken against mothers who put
their foetus at risk with alcohol or drug ingestion
o Enforced C-sections and transfusions on basis of states interest in protecting the right to life
of viable or near-viable foetuses
UK not-2 but not-1 entity model (more 1 entity though): recent trend to respect rights of mother
who refuses C-section, even if life of mother and foetus are at risk (more legal recognition of
mother)
Australia Seymour recommendations (light touch and educational approach, rights of mother to
refuse tx with awareness):
o 1. Make it unlawful for doctors to perform medical procedures on mothers who refuse
o 2. Women should be fully informed of relevant risks and consequences prior to refusing tx
o 3. Criminal law/child welfare law should not control behaviour of pregnant women
o 4. Professional and womens groups should provide educational campaigns to inform
pregnant women of foetus-harming behaviours
o 5. Clarify ability of child to bring an action in negligence in respect of injuries or suffering
caused before birth
Negligence considerations:
o Not-2 but not-1 model: Australia, UK, Canada
o Case against doctors thalidomide, cerebral palsy
o Case against car drivers damage in utero
o No precedent cases for mothers and smoking or drugs
o Case against doctor failure of disclosure to mother of dangerous behaviours possible
grounds (dept on courts accepting mother would have altered her behaviour accordingly)
Caution of hindsight bias: Civil Liability Act 2003 in favour of doctors, rules out ability
of mother to make any comment on what she would have done
Unlikely that legal enforcement of how a mother should act will be effective:
o Subjects women to surveillance, producing adversarial relationship bw mother anf foetus
and health system
o Women would avoid antenatal care for fear of involuntary tx or prosecution greater
foetal harm
o Protection of foetuses not legal responsibility of mother alone complexities of disease
causasation and socially determined behaviour (other factors eg. socioeconomic status,
family history)
o Way to go: social improvements for women and education/medical care for betterment of
foetal wellbeing (more about public health than ind choice/law)
Child Protection Act 1999 (Qld) Addition: if before birth of child, chief executive reasonably suspects
the child may be in need of protection after they are born, must take appropriate action (authorised
officer investigation, support mother). Purpose to reduce likelihood the child will need protection
after they are born as opposed to interfering with pregnant womans rights or liberties
Wrongful conception: negligent/failed sterilisation procedure or negligent contraceptive advice
unwanted birth of child
o Awarded costs for raising normal child
o QLD: Civil Liability Act 2003 no damages awarded for economic loss of raising normal
child, only extra costs related to raising child with a disability
Wrongful birth: negligence problems with having TOP in a pregnant woman (eg. insufficient
information, incorrect timing of prenatal tests) birth of disabled or not child
o Loss of opportunity for TOP (depends on lawfulness of TOP)
o Imp of communication of risks, time frames for tests, follow-up
o QLD Civil Liability Act 2003 HAS NOT caught up with these causes
Wrongful life: claim brought by child where it would have been better off if it had not been born
(negligence before birth birth of disabled child)
o Issues: valid cause of action? Nature of damage?
o Dismissed by HCA:
Cannot compare life with disabilities with non-existence
Public policy against claims about disabled people being worth less
Life with disabilities is not legally cognisable damage
Abortion Ethics and Law
Public positions and moral status of the foetus

o Most GPs thought all women should have access to termination services
o Most were broadly pro-choice
o Most believed a GP who conscientiously objects to abortion should be required to declare
this to a woman seeking TOP
o Health issue - when African state introduced abortion on demand reduction in backyard
deaths 91% in 10 years though still many abortion-related deaths per year and many
admitted to hospital for abortion complications every year in developing countries
Law on abortion
Professional obligations concerning abortion
How many unrecorded abortions using off-label misoprostol/methotrexate go on a year? In the
order of 100 000 abortions/year
Is abortion purely a womens rights/health issue? (Womans right to control her body)
o If abortion = killing a human being, you need to show that foetus does not have a right to life
o If it DOES, this trumps womens rights to bodily control
o If it DOES NOT (Aus) have a strong right to life, becomes a womens health issue
QLD case: woman raped and pregnant did not have $ for private TOP (only option here)
Ipswich hospital assured her TOP at 22 weeks (line of potential viability of foetus) declined 9 days
later on grounds that TOP reasons must be greater later in pregnancy only possibility in Victoria
but cost $10 000
North Dakota (deep north and deep south): 2013 Bill banning abortion once foetal heart can be
detected (6 weeks gestation) with no exceptions for rape, incest, mothers health
o Recently blocked by judge: blatant violation of constitutional guarantees afforded to all
women and other contradictions heard in US Supreme Court
Public positions:
o 1. Extreme conservative
a) ensoulment: religious
b) foetus is human being: once conceived is of immense value
c) foetus is a potential person: has same rights as persons OR abortion infringes right
to life of the person foetus will become
o 2. Extreme liberal
Version 1: A right requires an interest which requires the relevant concept
(understand what its all about)
A right to life requires a concept of continuing life (only persons have this
with rationality and social interaction), of which foetus have no concept

Foetuses are not persons with a right to life so it cannot matter to a foetus if
it is killed
Version 2: You cannot infringe the right to life of the person the foetus will become
because there is NO particular person identifiable which it will become AND a right
to life requires a particular person
Harm: liberals accept abortion, but may distinguish methods on basis of if it will
inflict pain/cause harm to the sentient being or the actual person it will become
foetus has right not to be harmed, but not the right to life (different kinds of harms,
not different degrees)
o 3. Intermediate
Common intuitions abortion is morally seroius but not always wrong, may be
justified in some cases, the foetus may not have a strong right to life but is still of
significant value
Value of foetal life
a) proportional to developmental stage (viable after 22 weeks, can feel pain)
b) based on potential for personhood (conservative full right to life, OR
serious and increasing, but not absolute right to life)
Criminal law is prosecuted by the State
o Standard: beyond a reasonable doubt
o NOT civil law (incarceration, not compensation)
o Abortion has traditionally been governed by criminal law, but the law is in transition
o Australian legislation on abortion is a mess decriminalised, criminalised in different states
QLD and NSW: changed the least criminalised but with common law defence of
necessity and proportion
NT: law tries to reflect what it presumes to be community consensus partially
decriminalised (2 doctors determine greater risk of harm to mothers life from cont
preg) = intermediate ethical view
Unlawful abortion in QLD is a criminal offence Criminal Code 1899
o Any person who, with intent to procure the miscarriage of a woman, with or without a child
(you just think shes pregnant still guilty of a crime), unlawfully administers poison, noxious
thing, or uses force of any kind, is guilty of a crime, liable to imprisonment with hard labour
for 14 years
o Woman attempting to procure their own miscarrage 7 years imprisonment
o Supply or procurement of any thing (drug/instrument) 3 years
Lawful abortion in QLD (s282):
o Protects others performing abortions, not woman procuring own abortion
o A person is not criminally responsible if performed in good faith and with reasonable care
and skill, a surgical operation or medical treatment for
a) the patients benefit
b) preserve the mothers life (this shows PROGRESSIVE interpretation)
o A foetus is not capable of being killed so homicide cannot apply to a foetus
o 1. R v Bourne UK: If probable consequences of cont preg are to make the woman a physical
or mental wreck, then doctor can be taken to be operating to preserve the life of the mother
o 2. R v Davidson Vic (imp for QLD too): Accused must have honestly believed on reasonable
grounds it was

a) necessary to preserve the woman from a serious danger to her life or her physical
or mental health
b) in the circumstances not out of proportion to the danger to be averted
o Menhennit rules: principles of necessity and proportion
o Preservation of mothers life
Conservative interpretation: would outlaw most abortions
Liberal interprestation: in terms of perceived necessities of situation
Necessity legal principle, excusing an otherwise criminal act, on the ground that it
avoids an inevitable and irreparable evil
o 3. R v Wald NSW: extension to any economic, social or medical grounds which would cause a
serious danger to physical or mental health (eg. economic hardship serious danger to
mothers mental health TOP ok) and where serious danger could be expected to apply at
any time during pregnancy, not just when seen by doctor
o 4. K v T QLD: Judge refused to allow an injunction restraining a woman from having an
abortion
o 5. R v Bayliss and Cullen QLD: doctor and anaesthetist accused of performing unlawful
abortions, found not guilty, approved Menhennit rules, thought ruled out abortion on
demand
Used idea of viable child position bw abortion and murder, admitted scope difficult
to define, though this still remains the law for QLD
o 6. Vievers v Connolly QLD: wrongful birth case negligent failure to detect rubella in
pregnant woman and not advised of possibility of TOP child born with severe
impairments
TOP would have been legal based on danger to mothers mental health, likely to
crystallise after birth of seriously affected baby, but as a consequence of pregnancy
(expansion beyond during pregnancy)
o Weirdo exception - 7. R v Brennan and Leach Cairns: Judge directed noxious be interpreted
in reference to woman not foetus, said s282 not relevant as refers to preservation of life,
said drugs would have minimal s/efx on mother both acquitted LOL
Queensland position:
o 1. S282 provides a defence to abortion, coupled with case law
o 2. Menhennit rules accepted law
o 3. Serious danger to (mental) health now extends beyond birth (only in cases of seriously
affected foetus?)
o 4. No direct application of other conditions (social, economic) either during or beyond preg,
indirect justification via mothers mental health
o 5. Medical tx (+ existing surgical techniques) now included in s282
o 6. Definition of noxious is somewhat clearer from weirdo R v Brennan and Leach case
Abortion on demand in QLD?
o Difficulty in prosecuting doctors
1. Scope provisions
2. Must prove doctor did not believe on reasonable grounds that abortion was
necessary subjective assessment when all doctor has to say is yes I thought it was
lawful
3. Need to prove risk was out of proportion to that of continuing pregnancy

4. 2 and 3 needed beyond a reasonable doubt (criminal standard huge onus to
prove)
Child destruction s313 killing unborn child
o Any person who prevents child from being born alive imprisonment for life
o Any person who unlawfully assaults a pregnant female and destroys the life of, or does GBH
imprisonment for life
Private abortions: 15 000
Public abortions: 300 (foetal abnormality, serious maternal illness)
Moral objection to TOP:
o Good Medical Practice: you have a right to not provide or directly participate in txs to which
you conscientiously object, informing your patients and relevant colleagues and not using
your objection to impede access to txs that are legal (no positive obligation to refer on, just
cant stop them from going anywhere else)
o AMA Code of Ethics: you may decline to enter into a therapeutic relationship where an
alternative health care provider is available and not an emergency
o WA, Tas, ACT, SA, NT: no legal obligation if you object
o Victoria: requirement for conscientiously objecting doctors to refer on
o Tas Bill not yet up: incl Victorian requirement
o Should availability of lawful services depend on values of txing doctor? Paternalism/inequity
issues.
o Notre Dam Medical School (Roman Catholic) has tension with principles and AMC obligation
to educate students regarding medical services which are provided in Aus
Men have no rights at all
Advance Care Planning
Conceptual links bw autonomy, competence, advance care planning, QOL and refusal of medical tx,
always presuming capacity and competence
Who can make decisions about your health care when you lack capacity relatives, doctor, legal rep,
court, statutory officer (appointed by Court), you (even if you want yourself to make the decisions,
even if youre no longer competent)
Advance care planning needs to be led by GP: education about end of life planning (want to go to
ICU?), providing with choices (eg. intrusive txs), optimises family satisfaction
Nursing homes: everyone should have a form of advance care planning, maybe not AHD, but may
give Enduring Power of Attorney to someone they trust
General principles:
o Preservation of ind autonomy
o Shift of unilateral decision-making power from doctors (document with their principles)
o Appropriate contributions to decisions from pt, doctor, family
o Minimisation of stress on families
o Ability to adapt to changes and modify wishes
o Formal processes in QLD
Writing advance health directives
Nomination of substitute decision-makers
Powers of Attorney Act Guardianship regime
NSW has no legislation free for all, makes even more difficult
o Legal protection for doctors to and not to follow the document as well
Advanced Health Directive Common Law directive
o Requirements:
Principal must be competent when writing AHD (need GP witness signature)
AHD must have been written voluntarily no coercion
Directive must be specific for anticipated circumstances
o Not required:
Discussion of tx by doctor with pt
Pt fully understood nature and effect of decision
o Malette v Schulman: JW with serious injuries and unconscious carrying refusal of blood card
doctor believed pt insufficiently informed that by not having blood would die
transfused rejected by court and doctor heavily fined
Advanced Health Directive Statutory directive Powers of Attorney Act (stands higher)
o Greater procedural certainty for pts and health professionals
o Legal protection for health professionals where AHD not followed
o Greater clarity in identification of decision makers
o Greater assurance of recognition of pt autonomy
o In QLD, unlikely common law directives remain valid b/c we have statutory law
o Inconsistency bw POAA and Guardianship Act 2000 (GAAA prevails in cases of inconsistency,
AHDs not included in available processes in GAAA)
AHD general problems:
o Difficulty envisaging future health state
o Interests change once incompetent
o Doctors concerns of legal uncertainty (eg. euthanasia)
AHD Criteria: POAA
o 1. Advanced health directive
a) operates only while principal has impaired capacity for matter covered by the
direction
b) effective as if the principal gave the direction when decisions about the matter
need to be made and as if they had capacity
o 2. A direction to withold or withdraw a life-sustaining measure can not operate unless
a) any 1 of the following applies:
terminal illness/incurable/irreversible condition and treating doctor and
another doctor (from another team) determine death expected within a
year
PVS
Permanently unconscious (coma)
Severe illness or injury with no reasonable prospect of recovery without life-
sustaining tx (eg. massive SAH)
b) withholding or withdrawing artificial nutrition or artificial hydration must be
inconsistent with good medical practice (if it will be inconsistent, dont have to do it,
look if AHD supports you)
c) principal has no reasonable prospect of regaining capacity for health matters with
LST
o Need: 1 and 2a (and of 4 possibilities), 2b, 2c ALL COMPONENTS
Substitute decision makers Guardianship and Admin Act 2000

o Consent given by principal, decisions in principals best interests, take principals and health
providers views into account
o 1. AHD
o 2. Appointed Guardian (pts with lt trouble in life, lt mental health, QCAT quite early have
appointed a Guardian from the office of the Adult Guardian)
o 3. Appointed attorney (Enduring Power of Attorney)
o 4. Statutory health attorney (default position of no appointed attorney/lawyer, usually
family member or could be Adult Guardian if no family)
o Disputes: 1. Adult Guardian 2. QCAT
Mr Jones nursing home resident with COPD, epilepsy and dementia terrified of hospital, acute
dyspnoea, seizures, confused too late to write AHD (95% in nursing homes have mental
incapacity/dementia symptoms) if fall and call ambulance Freight train to acute care roaring
from ED to ICU (hospitalisation against wishes, intrusive, invasive interventions, loss of dignity,
family distress) avoid by making an advance care plan
Advance care plan: step by step plan formulated in consultation with family, GP and palliative care
physician (eg. not to be hospitalised, morphine, non-pharmacological measures, support for family)
o Known wishes Substituted judgment Best interests
Txing infections?: Use of aggressive medical tx for infections is not recommended for residents with
advanced dementia, instead palliative approach (morphine) recommended for residents comfort
(may incl st anti bx to ease symptoms and improve QOL) (NHMRC)
Give nutrition?: Consenting to food or refusing food is an expression of the residents autonomy. It is
considered best practice for residents to receive oral foods and fluids, even in minimal amounts,
rather than enteral feeding (NHMRC)
Resuscitation?: CPR success is low even in previously healthy individuals. In presence of serious
illness, outcome of CPR is universally poor (should be discussed prior)
Pain management?
Futile Treatment
Conceptual relationships bw sanctity of life, QOL, benefits and burdens, ordinary and extraordinary
means of medical tx and futility
Manipulating death: doctors withdraw LST as we have no moral/legal obligation to prolong this life
Medically futile descriptions can disguise ethical decisions
Fundamental problem: Thou shalt not kill, but needst not strive officiously to keep alive
recognition of cases where tx would be excessively burdensome
o Roman Catholic casuistry has distinction between

Ordinary means of treatment (morally obligatory with reasonable hope of success
and with an acceptable burden)
Extraordinary means of treatment (morally optional, little hope of success and with
an unaccetable burden)
Problem is subjective assessments of what is reasonable or acceptable
QOL/futility judgments
Plato: attempting futile tx displays ignorance that equals madness

Hippocrates: refuse to undertake to cure cases where the disease has won
the mastery
Baby Doe: surgery for fistula in Downs baby was omitted
Regulations:
No discrimination against the disabled
Upheld strict sanctity of life
All treatment would be ordinary
Struck down by Supreme Court legitimate grounds for non-tx modified
sanctity of life refrain from preventing death in some cases
1. Doctors
o Prognostic difficulties in pts not straightforward who is and who isnt going to make it
o No referral to palliative care services
o Low levels of advance care training
o Conversations with pts often starts too late; doctors reluctant to deliver bad news
o Fear of litigation motivates continuation of futile tx
o End-stage illness often not recognised or responded to
o Technological/tx imperative
o QOL/futility judgments may be influenced by resource limitations
2. Patients/families
o From the minute pt comes in, need to immediately shape realistic expectations
o Low levels of advance care planning
o Pressure for all tx from families
o QOL/futility judgments may be inflated by media representations
3. Both doctors and patients/families: not keen on bringing about death or being seen to
Futile: leaky, pointless, useless, no net value, no reasonable chance of success
Broad futility test approaches:
o Quantitative: chance of success 1 in 100 is futile tx
o Goal oriented (doctors/pt): physiological goals, pts life goals, what fails to achieve QOL
o Problems: conflict of who makes the judgment (eg. 2 tx medical teams) and families want to
keep going when medical teams want to stop
o Other approaches: failure to end dependence on ICU (or leave hospital is big flag for futility),
algorithmic systems, harm-based criteria (are we going to harm the pt if we keep going on
with this?), Schneidermanns definition unacceptable likelihood of achieving an effect
that the pt has the capacity to appreciate as a benefit
No agreed definition of futile tx procedural approach (fair and transparent)

Procedural approach Example 1:
o Clinicians make a judgment of clinical futility reviewed by clinical ethics committee
attended by pt seek transfer if disagreement with committee by
patient/representative/clinician withold or withdraw tx within 10 days if no transfer
possible pt can appeal to court to extend period
o Texas 10-day rule: give a trial of 10 days even though were calling it futile from Day 1, unless
you can get a transfer, people can appeal to court for an extended period too much clinical
power retained?
Procedural approach Example 2 Shortland v Northland Health Ltd: 63yr old diabetic with renal failure
requiring dialysis pending transplant lengthy assessment on interim dialysis not accepted onto
full time dialysis program due to dementia and inability to cooperate with tx requirements (deemed
futile tx) NZ Court of Appeal agreed assessment accorded with health districts guidelines and
ensured comparable regional services and maximum probable community benefit (justice) court
supported futility assessment (need more PROCESS family meetings and discussion)
Legal aspects
o 1. Futile tx not required if it is not in pts best interests (no duty of care)
It is the futility of the tx which justifies its termination
Court satisfied decision as to the appropriate tx is being made in the welfare and
interest of the pt, principally a matter for the expertise of professional medical
practitioners
o 2. Pts or substitute decision makers cannot demand tx
Doctors duty is to provide a range of tx options
Doctor not legally obliged to provide another option that is thought to be not
clinically indicated
o 3. Pts or substitute decision makers can apply to courts for review of futility judgments
Mr Thomson: as prognosis is unclear, you should still be giving anti bx, only once
prognosis is clearn and youre able to say it is futile should anti bx tx be withdrawn
Lack of obligation to provide futile tx is generally not affected by state guardianship legislation
except in QLD
o Health care to a pt encompasses withholding or withdrawing LST for that person if
continuing tx is inconsistent with GMP consent must be obtained before carrying out
health care on an impaired adult consent must be obtained before withholding or
withdrawing futile LST
o So arguably, family may insist on futile tx BUT matter may be referred to Adult Guardian
(who decides on adults best interest) or QCAT or appealed to Supreme Court Family Court
PVS: nutrition, hydration futile interventions b/c cannot achieve neurologic recovery. Comfort or
active tx measure? pt cannot appreciate any of those things as a benefit. Catholic-based hospitals
will give nutrition and hydration
Doctors through man was futile not for anti bx and NFR Family appeal to NSW Supreme Court
court found hasty diagnosis, poor communication and failure to follow hospital policy order to
resume anti bx and feeding patient well and discharged
Clinical approach:
o Initiated potential end of life situation conversations and futile tx as early as possible

o
o
o
o
o
o
Allow families to get their head around moving to a situation where it is highly unlikely these
interventions are going to work
Ascertain existence of formal advance care plans and substitute decision makers
Make provisional clinical assessment of futility when apparante, be truthful and take into
account pt and family religion, life goals, continue dialogue
Integrate futility of active tx with need to continue care as appropriate, involving pallative
care services early
Encourage open communication bw health care team members of all ranks
Consult colleagues where necessary
EOL in Paediatrics
Two fundamental options involving care of children at end of life ethical and legal dimensions
Need to distinguish be what can be done and what ought to be done (limit care and to what
degree?)
Ethical dimensions
Parental consent: purpose is to provide additional protections

As a child becomes more capable, right of parental consent lessens
Like a sliding scale, as children becomre more mature we respect their decision-making capacity,
considered in terms of how complex the decision to make is (potential for harms, actual harms)
Non-person person involves Maturity + Age = Recognition of competence and self-autonomy
Paediatric ICU (PICU) Admission types:
o Acute illness (potentially correctible eg. accident, drowning)
Least morally controversional
Medical txs define moral obligations
Problems that arise similar to high risk pts of any age
Get better quickly or die
Problems arise when tx only partially successful (eg. severe neuro impairment
secondary to meningitis similar issues to congenital anomalies category next
category)
o Acute on chronic: congenital abnormalities (may be ameliorated but not correctable)
Can make symptoms better but cannot correct underlying problem
Primary focus of ethical and legal issues (Syndromes Down, Spina Bifida, multiple
morbidities eg. CF)
Whether to sustain LST (start thinking things you can do, things you ought to do)
Whether to do corrective surgery (eg. cardiac malformations, brain shunts) that
wont cure but is usually successful though may result in other conditions
Essence of matter:
1. Underlying conditions cannot be cured
2. Txing life threatening conditions generally feasible and successful
3. Often successful tx but may lead to further sig impairments
If life-threatening manifestations not txed then nature takes its course
Most common pathway for children to die is via decision to limit LST (decision to limit care was
before most hospital deaths)
Standard tx practices: initially tx aggressively until more known about prognosis

Later decisions impacted by:
o Values and preferences of parents (some want aggressive, others more natural and
withdrawal of artificial things)
o Nature of txing culture at hospital (more conservative likely to limit care, regional is more
aggressive as training is being done there with younger cohort and latest resources)
o Access/availability of resources
o Certainty of prognosis or diagnosis (easier with known disease trajectory)
Purpose of care with poor prognosis:
o 1. Base care decisions on potential for cure or increase life expectancy (preservation of life
debate)
o 2. Base care decisions on potential to enhance, maintain, manage QOL by minimising
symptoms
o Initially may involve varying degrees of both
o Accepting the demise of a child is likely is not akin to a failure of care QOL matters
(enjoying the small things!)
Responsibility: limiting care is common in Australia (more than studies in US or UK, maybe less fear
of litigation and good palliative care physicians)
o Intense responsibility felt by doctors to limit care and dont want to burden or upset parents
too early
o Parents very involved in care decisions
o Decision-making for parents fraught with difficulty: vulnerable, anxious, grieving, fearful
Discussions about death:
o Must present all tx alternatives, even ones that will not be offered (not beneficial to the
child), or that will/are being withdrawn
o Parents understand this means child may die sooner: perception of signing a death warrant
BUT if we aggressively tx with lots of interventions, going to cause a lot of suffering because
of s/efx
o Not making decisions or not having conversations early may result in long drawn out death
o Parents on an unfamiliar, challenging, confronting journey and feel intense responsibility to
make good decisions fear the will regret and have to live with poor decisions and will
ultimately bear responsibility for decision
Level and nature of decision making should be negotiated with parents
Range of diff views about taking responsibility for decision-making
o Barriers to effective communication with parents:
Parents struggle to believe prognosis
Fears family not ready for discussion
Concerns about upsetting family
o Other barriers:
Understanding when/how to involve children/adolescents
Negotiating with parents about role of them in decision making about their care
(sometimes parents request child not told)
Conflict bw parents and clinicians about expectations and decisions
o Senior clinicians feel better able to manage conversations: experience, wisdom, reflective
practice
Two key ethical principles: rights of parents and rights of child (best interests) principle of rights
of child (no harm) carries more ethical weight in paeds than principle of respect for parental
authority (Child rights wins over parental rights)
Parents rights: not absolute or limitless, society imposes restrictions where doctine of parens patriae
holds that state may act as a surrogate parent when necessary to protect child
o Though rare, situations where parental consent may be: inappropriate or offer no protection
o Eg. parents neglectful/abusive or where seeking parental consent may be risky rather than
protective (choosing to forgo conventional care for alternative therapies)
Best interests of child: ambiguous concept, ideally obligation to maximise childs wellbeing where
surrogate decision maker must determine highest net benefit among available options, assigning
diff weights to interest the pt has in each option and subtracting inherent risks or costs
Diekemas List of 8: Justified state interference:
o 1. By refusing to consent are the parents placing their child at sig risk of serious harm?
o 2. Is the harm imminent, requiring immediate action to prevent it?
o 3. Is the intervention that has been refused necessary to prevent the serious harm?
o 4. Is the intervention that has been refused of proven efficacy, and therefore, likely to
prevent the harm?
o 5. Does the intervention that has been refused by the parents not also place the child at
significant risk of serious harm, and do its projected benefits outweigh its projected burdens
significantly more favourably than the option chosen by the parents?
o 6. Would any other option prevent serious harm to the child in a way that is less intrusive to
parental autonomy and more acceptable to them?
o 7. Can the state intervention be generalised to all other similar situations?
o 8. Would most parents agree that the state intervention was reasonable?
Decision-making models: degree of parental involvement based on their preference (spectrum from
sole decision makers, shared to just having input but wanting doctor to make decisions)
o Level of responsibility apportioned according to role in decision-making (though percetion of
decision-making may still vary)
o Ethically contestable which is best in each situation
Role of doctor:
o Negotiate level of decision-making and responsibility with parents
o Respect parents rights to decide where possible (unless you think what youre offering will
be of net benefit)
o Provide access to information and services
o Assist parents to understand meaning of their decisions and role they play
o Most parents not negatively affected when involved and responsible
o Guilt and regret less frequent than those parents not involved in decision-making
Legal dimensions
Sources of parental power:

o Common law duty to provide necessaries of life incl medical tx (Gillick/Marion)
o Consistent with criminal law (Criminal Code QLD, Family Law Act Cth)
Gillick competent: presumption minors are incompetent so must obtain factual proof of competency
o Fully understands v adult informed in broad terms

Greater consequences of tx, greater capaacity required: risk related standard theory
By limiting information, competence can be arrested (courts rarely override but usually
instead just find some reduction in competence of child eg. overwhelmed with info try
to prove incompetence)
Limits to parental power: non-therapeutic sterilisation, TOP, gender reassignment, transplants (all
require court approval)
Legal best interest standard: tries to be objective but allows some influence of parents views
o Parents views must at least be within limits of what is permissible according to general
community standards
o Aus: lean towards more objective definition
o Physical/psychological/emotional well-being
o Little statutory or common law guidance on what interests are crucial or how they should be
weighed
3 types of cases:
o 1. Seeking courts declaration of lawfulness of a procedure: eg. authorisation of TOP for
12yrs old
o 2. Challenge to childs/parents refusal of tx: eg. JH refusing blood transfusion
o 3. Overriding childs/parents consent to tx: eg. non-therapeutic hysterectomy
Factors for consideration:
o Medical condition and proposed procedure (reasons for this) and alternative tx available
o Desirability/effect of proposed procedure compared to alternatives
o Physical effects and psychological/social implications of authorising or not authorising
proposed tx
o Nature and degree of risk in authorisint or not authorising proposed tx
o Views of everyone involved
o State of QLD v Nolan: separation of craniopagus twins in best interests, even though meant
death of one twin
o Re Inaya (infant tissue donor cases): donation can be legally in childs best interest in the
absence of therapeutic necessity or medical benefit
Notion of QOL is subjective: value statement, courts reluctant to qualify this usually relate to
intolerable life or child with no interest at all (profoundly mentally disabled) and will favour sanctity
of life over QOL
Courts reluctant to override Gillick child but can and in fact usually find child not Gillick
o
o
Terminal Illness
Describe links bw choice of a medical career and death anxiety

Death anxiety:
o Does how we feel about death personally influence the care we give?
o Should all doctors be able to handle death?
o Do you feel upset when thinking that patients may die?
o To some practitioners, admitting to death is like acknowledging failure
o Younger and less experienced physician displays greatest death anxiety and was the one
most frequently confronted with death (need to have bad news breaking modelled)
o Questionnaire:

Does it bother you that you may die before you have done everything you wanted to
do?
Do you worry that dying may be very painful?
Does the thought bother you that you might lose control of your mind before death?
Does the thought worry you that with death you may be gone forever?
Palliative care: an approach that improves the QOL of patients and their families facing the problems
associated with life threatening illness, through the prevention and relief of suffering by means of
early identification and impeccable assessment and tx of pain and other problems, physical,
psychosocial and spiritual
Experience of dying study results: privacy and autonomy, getting information, practical and
emotional support, desire to shorten life (doctors fear suicide/euthanise)
A good death: kept clean, maintain personal sense of control, nurse they feel comfortable with,
maintain dignity (worthy of honour and respect), trust doctor, humour, goodbyes, avoid
inappropriate prolongation of dying
Issues confronting doctors: denial/avoidance, feeling of failure, uncertainty of prognosis, balancing
tx, symptom control and s/efx with pts perception of QOL, chronic sorrow, feeling unprepared
Law: 2003 Amendment to Criminal Code not criminally liable if reasonable palliative care in
circumstances, in good faith, even if an incidental effect of providing the care is to hasten the death
of the person (eg. morphine)
o Palliative care: any act or omission directed at relieving a persons pain and suffering
o Reasonable palliative care: conforms with medical and ethical standards of the medical
profession
National Health and Medical Research Council (NHMRC) 4 principles approach to terminal illness:
o 1. Clinical integrity (imp of respecting all of a persons values, needs and wishes in context of
health care)
o 2. Respect for persons (autonomy)
o 3. Justice treat like alike
o 4. Beneficence to do well, to promote well-being
Clinical integrity in context of advanced chronic or terminal conditions:
o 1. People given best available continuing and integrated tx and care as their needs change
o 2. Responsible health professionals undertake a specific review of a persons tx, care options
and wishes if they believe they would be surprised if this person was alive in 12 months
o 3. Referred in timely and transparent ways to most appropriate health professionals
o 4. Health professionals communicate and collaborate with each other in a timely and regular
way
o 5. Review by multidisciplinary health teams is available when needed, if they exist
o Is there a need to introduce a specialist palliative approach to care?
o Have I had a conversation with the person regarding their wishes as the end of their life
approaches?
o Do I have sufficient information regarding the supports this person has from their family
carers and others? How will communication be maintained with these people?
o Have I consulted/communicated with relevant colleagues about my patient?
o How will I deal with a persons stated wishes when they clash with their best interests or are
not in keeping with best clinical practice?

Does their advocate fully comprehend effects that withdrawal of curative tx will cause? (eg.
Do Not Resuscitate Order)
Respect for persons:
o Health professionals seek to discover extent to which people are willing and able to be
informed about their condition and prognosis
o In practise end of life truth telling seems to come down to individual physician preferences
o No reason for you to ever feel threatened by family when youre trying to disclose bad news
flick up to your superiors (eg. if family doesnt want pt to know)
o 100% truthful, 100% of the time: pts given accurate information of prognosis and available
care and tx options
o People encouraged and given support to adapt to the changes in their condition, to plan for
their future needs, appoint a rep if they wish
o Right to refuse additional txs believed to have a negative impact upon their comfort and
QOL is respected
o Cultural and spiritual beliefs and practices acknowledge and respected all times
Justice: implications for ICU admissions if futile but like cases are treated alike for fairness
Her husbands case: few txs available stop work, support kids, keep fit aimed to stay as well as
possible and keep out of hospital died in hospital, I can not drain you and put you on morphine
and medazolam
Why Doctors Die Differently: know limits of tx and the need to plan for the end, so many doctors
would opt to not have active tx apart from symptomatic
Ethical concepts:
o Autonomy consent (eg. pain going down surfing to coast)
o Paternalism coercion from family and health care staff (eg. doctor reluctant to stop
experimental tx that was working)
o Limits of care and therapy
o Dignity, beneficence, harm, qualia (how we as inds experience things at a personal level
pain, temperature and sensation perception differs) means you need to make decisions
on your tx and s/efx you may experience
o
MBBS II, Semester 1

Australian Government Professional Services Review
Australian Medical Council: accreditation of medical courses

Medical Board of Australia and AHPRA: define educational standards, maintain a register of medical
practitioners, manage complaints
o Notifications about health, conduct or performance
o Incompetent/dangerous practice
o Unconventional practice
o Unprofessional (mis)conduct
o Impaired practitioners (eg. demented/alcoholic)
Colleges: bestow postgraduate credentials, specialties
Professional Services Review:
o Established in 1994 by Federal Parliament as part of Medicare arrangements
o Statutory roles under Health Insurance Act
Protects patients and community from risks associated with inappropriate practice
Protects Commonwealth from the cost of medical services associated with
inappropriate practice (eg. overservicing just seeing lots and lots of patients)
o Based on peer review a Committee of Peers, professionals make the decisions
Medicare compliance:
o Have decided not to comply use the full force of the law
o Dont want to compy deter by detection
o Try to, but dont always succeed help to comply
Data mining: sophisticated statistical and behavioural analysis and modelling to uncover patterns in
data find incorrect payment and fraud prevent or reduce debts
Referrals to PSR:
o High volume of services (eg. > 500 patients/day)
o Unusual pattern of services (eg. crazy amounts of chronic management plans)
o Atypical utilisation of diagnostic imaging (eg. GP ordering CT scans at 4x rate of other GPs
dangerous amount of xray exposure and $$)
o Misinterpreting case items (eg. high proportion of complex skin lesions when it was the
simple one)
o Unusual PBS ordering (eg. lots of narcotics/BZDs)
PSR Review: Medicare data, submissions from practitioner
o PSR has power to require practitioner to provide a sample of clinical records (eg. send PPT of
the skin lesions)
o PSR engages Consultants to assist review
PSR Committee:
o Medical practitioner as chair (under law)
o At least 2 practitioners of the same discipline as doctor under review
o Access to legal advice, but as it is a peer review process, the practitioner in question must
answer the questions themselves
Examination of services:
o Satisfied the requirements of the relevant items in the MBS

Satisfied the requirements for prescribing under the PBS
Provided services that were medically necessary
Provided an appropriate level of clinical input
Clinical record was adequate and contemporaneous such that another practitioner could
provide continuing care
Possible outcomes: reprimand, counselling, partial/full disqualification from Medicare, repayment of
Medicare benefits, full disqualification from the PBS, if inappropriate practice name published
(media have access)
Referral to Medical Board:
o 12% of PSR cases referred on more power to get proper assessments, send people to
psychiatrists, have processes (PSR just refers to Board under suspicion)
o Incompetent/dangerous practice
o Unconventional practice (eg. laser tx for all sorts of conditions)
o Impaired practitioners
Criticisms of PSR: Senate Committee Review in 2011
o Recognising Speciality Areas: Not true peers even just under specialty, there are
subspecialties now the professional colleges must discern the appropriate peers to a
committee
o No legal representation
o Only dealing with statistical outliers
o Too focused on GPs, few specialists referred
Legal issues:
o Practitioner cannot challenge on merits (but can challenge on Administrative Law Reviews
take Committee to court)
o Can challenge on administrative processes
o PSR has been to Federal Court many times
o Paralysed in 2011-12 through technical error in Panel appointment processes
government enacted retrospective legislation to validate all of the committee
requirements
Medical records Health Insurance Act/Regulation
o Clinically relevant service: a service by a relevant practitioner generally accepted in the
profession as being necessary for the appropriate treatment of the patient
o Determination of necessity of service: the treating practitioner must determine that the
pathology service is necessary
Determined by strength of the medical evidence encapsulated in things like clinical
guidelines, and not simply whether care is essential, but whether it is advisable
given a delicate balance of benefits, risks and costs
o All practitioners who provide a service in respect of a Medicare benefit that is payable,
should ensure they maintain adequate and contemporaneous records
Name of patient
Separate dated entry for each attendance by patient
Each entry: clinical information adeqate to explain type of service rendered or
initiated
Each entry sufficiently comprehensible such that another practitioner, relying on the
record, can effectively undertake the patients ongoing care
o
o
o
o
Problem with computer-generated template records that can be populated

with a press of a button
The Challenge of Euthanasia
Case 1: from medical profession, nothing they can give her that will support her to die AMA:
intent to relieve pain, NOT cause death, if the intent is to end life, that is illegal
Case 2: claims pain relief only achievable through coma, wants to withold food and fluid Britich
Medical Association: euthanasia is based on intention to end life, so doctor can do neither
Hippocratic Oath: I will give no deadly drug, nor perform any operation for a criminal purpose, even
if solicited, nor will I suggest any such counsel
Euthanasia: providing a person with the means, or the knowledge, to end their own life a good
death; mercy killing
o What is it NOT:
Withholding or withdrawing ineffective life support systems, including advance
directives to this effect (you are withdrawing extending their life beyond their
normal natural means)
Giving increasing amounts of pain medication, which may also incidentally shorten
the persons life (intention is ok)
Respecting a patients right to refuse further treatment
Active voluntary euthanasia: deliberate act intended to cause death, at the request of a competent
patient, or what they see as their best interest, usually in circumstances of terminal illness where
patient is experiencing physical and/or psychological suffering that is unacceptable, and cannot be
relieved by means acceptable to the patient
Physician-assisted suicide: available in Oregon, Switzerland, some other places around Europe are
moving toward this whole pile of policies to protect people who may be euthanased even if they
didnt want to be, as well as for people who think I should take that option b/c Im a burden
Passive euthanasia: when youre giving medications that may hasten death
Evaluative terms: death with dignity, futility (very little agreement in medicine on this definition),
burdensomeness
Terminal sedation: sedative drugs to induce unconsciousness (to relieve suffering incl anxiety and
terminal restlessness) includes withholding artificial nutrition/hydration so cant eat or drink
die
o Slow euthanasia, pharmacological oblivion
o Ethically inferior to Assisted Voluntary Euthanasia as it requires patients to linger a few more
days before they die with the potential for further suffering
o With terminal sedation we are already legally permitting and practicing something closer to
active euthanasia than is commonly recognised
Arguments for voluntary euthanasia:
o Autonomy, beneficence/compassion
o No moral difference between killing/letting die (in these cases) ?
o Euthanasia happens already equity, brings the law into disrepute
o Increased incidence of euthanasia without request (there are people providing this)
o Legitimate element of palliative care? (Shouldnt replace palliative care, but be a component
that can be accessed properly)

Since we cannot just do anything under autonomy, right to assisted death requires extra
arguments
Arguments against voluntary euthanasia:
o Euthanasia is morally wrong
o Moral difference between killing and letting die
o Value of human suffering (Sarah Winch thinks this is weird)
o Slippery slope could become a process of abuse
o Integrity of medical profession
o Palliative care obviates need for euthanasia
Arguments for and against are often counterarguments to the other position eg. killing and letting
die, one says there is no moral difference at all, another says there is a significant moral difference
QLD Criminal Code: No defence to a charge of criminal responsibility for causing another persons
death, that the other person consented to their death
o Anyone who, by an act or omission, hastens the death of another person, when that person
is labouring under some disorder or disease shall be deemed to have killed that person
o A person who has a duty to provide the necessaries of life for another person who cannot
provide for themselves, is criminally liable of they dont provide them
o Failure to provide medical necessities is NOT killing as long as the tx is either asked to be
removed by a competent patient, or is futile
o Futile tx cannot be construed as necessary
UK guidelines: reflecting a transitional phase?
o Public interest factors tending in favour of prosecution: victim under 18yrs, no capacity to
reach an informed decision to commit suicide, had not reached clear decision, had not
clearly and unquivocally communicated their decision
o Public interest factors tending against prosecution: reached a clear decision to commit
suicide, suspect wholly motivated by compassion, suspect sought to dissuade victim taking
course of action (tried discussion, nothing was working)
o Commission on Assisted Dying Report:
Current law: on legal status of assisted suicide inadequate and incoherent
Case for change: strong case for providing choice to terminally ill people who
experience a degree of suffering they consider can only be relieved by ending their
own life or knowing they can choose the time
Legal change: possible to devise a legal framework that would set out strictly
defined circumstances, while providing safeguards to protect potentially vulnerable
people
Australia:
o Lots of State bills (except QLD) all defeated so far
o Tasmanian bill defeated October 2013
o Bills aimed at reversing the overriding of euthanasia in NT by Euthanasia Laws Act 1997:
Private member bill: Commonwealth Rights of the Terminally Ill (Euthanasia Laws
Repeal) Bill 2008 lapsed
Restoring Territory Rights (Voluntary Euthanasia Legislation) E Bill 2012 lapsed
end of Parliament November 2013
o
2003 Amendment to Criminal Code: not criminally liable if reasonable palliative care in the
circumstances, in good faith, with reasonable care and skill, even if an incidental effect of
providing the care is to hasten death
o Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act
2004: outlaws used of carriage services (internet) to distribute information or promotion on
committing suicide
Judicial mercy/community sympathy: if little old man killed his old wife who was suffering, have
weak penalties
Hard to demonstrate intention/predictability/causation for doctors who provide enough pills for
death as at EOL, we give pts a lot of drugs on their bedside table
The profession and euthanasia:
o
Not illegal to starve yourself can be supervised to not eat or drink, given sedation
Autopsy Symposium
Glebe Morgue Inquity: Institute of Forensic Medicine, NSW

o Organs collected and stored without knowledge of families
o Audit 25 000 body parts held by hospitals/universities for training, some lawful, others
unlawful (retained for research, not to ascertain cause of death)
o Hospital autopsies: teaching, research or to confirm diagnoses, subject to appropriate
consent
o Coronial autopsies: establish cause and manner of death where it is unknown, or the identity
of the deceased is unknown
o Coroners Acts do not authorise the removal or use of tissues from a dead body for any
purpose other than the establishment of the cause and manner of death removal of body
parts solely for research purposes constitutes a CRIMINAL OFFENCE
Central theme from inquiries, investigations and reviews:
o a) Relatives of deceased person need to be given an adequate opportunity to participate in
the decision-making involved in any post-mortem examination which may be carried out
o b) An appropriate level of communication with the relatives ofa deceased person about any
post-mortem examination is critical to any informed involvement y them in the decision-
making process

c) Unless the law and relevate practices operate to adequately secure such an opportunity
for relatives, the post-mortem examination system will be significantly out of step with
current community expectations
The pre-reflective assumption: we cannot have obligations to the dead b/c we cannot affect their
experiences we cannot harm/benefit them
On reflection: people can have posthumous interests can be harmed/benefitted posthumously
others/society have interests in ways in which the dead are treated
Autonomy-based interests: fundamental right to self-determination, the body is the remains of ME,
when I am alive I can have interests in how my body is treated, how my privacy is respected, how my
familys rights in dealing with my remains are respected, consenting to what happens to my body,
how my assets are dispersed
Recognition of autonomy-based interests:

o Family and community memory, respect and recognition
o Wills
o Funerals and other rituals: recognition of religious freedom
o Policies, guidelines and law on human tissue, organs, bodies, anatomy schools, interference
with corpses, research requirements
o People die in relationsips with families
Competing interests and motivations:
o Research, education and training are ethical imperatives
o Produce improvements in health
o Decline in autopsy rates for ~30 years
o Education and legal literacy of health professionals previously poor
Policies, guidelines and law:
o NHMRC Organs Retained at Autopsy Ethical and Practical Issues, following UK and
Australian cases and inquiries replaced in 2008 by Australian Health Ministers Advisory
Council guideline The National Code of Ethical Autopsy Practice 2002
o Royal College of Pathologists Autopsies and the Use of Tissues Removed from Autopsies
o Coroners Act 2003 (QLD): Coroners order the coronial autopsy, but must have regard to
possibility of family distress (cultural beliefs), any concerns raised by family relating to type
of examination
RACP: in the coronial situation, the next of kin should receive information about
organ retention of the same quality that is provided in the non-coronial situation
In some circumstances it will be proper for the coroner to override objections of
next of kin (eg. in the interests of justice)
o Transplantation and Anatomy Act 1979 (QLD)
1. Tissue donation for transplantation, therapeutic or research purposes consent
required from senior next of kin, additional requirement HREC approval
2. Hospital autopsies for diagnostic purposes and medical education consent
required from senior next of kin
3. Donation of bodies for anatomy teaching often bequeathed by the person
but as long as no known objection by the person, consent can be given by senior
next of kin
o Criminal Code 1899 (QLD): Misconduct with regard to corpses any person who, without
lawful justification or excuse, the proof of which lies on the person
o

a) neglects to perform any duty imposed upon the person by law, touching the
burial or other disposition of a human body or human remains
b) improperly or indecently interferes with, or offers any indignity to, any dead
human body or human remains, whether buried or not guilty of misdemeanour
liable to imprisonment for 2 years
Demise of autopsies:
o Increased patient assertiveness/autonomy, especially in context of poor communication of
autopsy results
o Requirement for family consent: increasing difficult
o Increased confidence in technological diagnostic testing/imaging decreased reliance on
autopsies
o Fear of litigation if autopsy reveals clinical errors
o Self-fulfilling cycle: no exposure as student to autopsy decreased chance that as doctor
will have skills to request autopsy
o Reasons to reverse the demise:
Clinical causes of death remain subject to sig rates of error
Important for safety and quality processes
Positive value for medical education + families in clarification
Tissues and organs continue to be required for research
o Responses:
Coronial autopsies sources of community health and safety recommendations, could
be greater sources of tissues and teaching
Some jurisdictions allow for family consent to use of tissues from coronial autopsies
Donations for research compatible with primary purpose of coronial autopsy
Consent requires information provision which needs to be materially relevant but not harmful
Ensure appropriate research ethics approval for use of tissues or records of deceased person
Support expansion of using coronial autopsies for education and research, subject to ethical
processes confidentiality considerations, adequately informed consent processes

Innovations in Medicine: Clinical Research
Clinical research: significant departure from clinical care by its aim of being future-directed and is to
contribute to generalisable knowledge for the benefit of society (cf. clinical care is to benefit the
individual patient, with decisions being made in that persons interest)
Technology is more advance than practice slippery slope? (Doris the sheep) Increasingly grey
area bw what can be done (or omitted), and what ought to be done (or omitted); and what can
legally be done
Medical advancement: in theory, in labs, Universities and Institutes as dont have a lot of gov
funding, work with Commercial companies and enterprises drugs, devices, interventions
(changing a practice that you do)
Post-WWII Golden Age of Medicine: incl lithium for psyc disorders, streptomycin, penicillin, polio
vaccine for infectious diseases, defibs, cardiac catheters for heart disease, methotrexate for
chemotherapy, OCP for family planning
o Double helix discovery led to new genetics Human Genome Project, gene
experimentation
o Cloning: people, genomes, genes

o Neonatology: Total Parental Nutrition (TPN) and mechanical ventilation
o Surgery: face transplant, bovine cardiac valves
Public innovations: monitoring amd managing water quality, sewerage and sanitation
improvements, vaccination programs, Public Health Policy
Ethical implications: some agents change the essence of a person (incl administration of opioids,
neurosurgery even transplantation and blood transfusions?)
Bioethics: need for guidance in applying normative ethics theories to
o Make them relevant in todays society
o Interplay bw science, policy, the public and academics
o Creates a space for framing fundamental questions about societal oughts
Fundamental questions:
o Under what circumstances is the extension of life beneficial?
o How should common societal beliefs be reflected in law?
o Are individuals more imp than advancing societys interests through innovation? (Youll
often be approached to be involved in research by drug companies may conflict with your
interest as a clinician)
Innovations: Clinical Ethics Committees, Research Ethics Committees (more formal application
university, institutional), Clinical Ethicists, Law specialists (patent, copyright), Conduct governing
bodies (TGA, NHMRC, MBA, APHRA registration)
Shared purpose bw clinical researchers and clinical practitioners: to protect the rights and wellbeing
of individuals whilst also encouraging innovation and creativity, and protecting the rights of the
innovator
o Shared conflicts:
Tension bw balancing incentives to practitioners as providing motivation, and
encouraging innovation that benefits SOCIETY
Conflicts of Interest: financial, gift incentives, power to influence policy and
procedures at local level or further, authorship and recognition (we hold doctors to
a diff standard than politicians and corporate executives)
Regulation:
o Clinical research is highly regulated, though innovations in clinical CARE are not as regulated
or monitored (you act intuitively based on EBM, eg. try thalidomide this is very
innovative, but I think it may work for x reasons
o Often data collated as part of innovations in clinical care will be analysed retrospectively
ad hoc outcome, not actually setting out to conduct research, just saw therapy was working
then reported results (eg. nenotaology mechanical ventilation and TPN has improved care
of babies but a lot of the most innovative practitioners have been accused of treating babies
as guinea pigs)
o One cultural-psychological response to the conflict bw the desire for progress and the
abhorrence of experimentation in medicine is to imagine that what is going on is not, in fact,
experimenting at all Lantos & Meadow, 2006
Research innovations in Australia comes under same laws as those governing clinical care
o Conducted according to NHMRC guidelines
o Grey area as non-therapeutic tx do not (eg. microwave therapies)

Normal laws as if you are a doctor, even when you are researching, you are held
accountable to your highest qualification (Medicine)
o Some countries (eg. NZ) have research specific laws
o Greater duty to disclose risk and burder for research than for conventionally-accepted tx
o May involve issues of:
Consent and confidentiality (eg. retrospective chart analysis must go back and get
permission): Privacy Act (2009) QLD
Human cloning: Prohibition of Human Cloning Act 2002 and Research Involving
Human Embryos Act 2002
Risk and harm: Civil Liability Act (2003) QLD
Patent and copyright
Clinical innovations involving drugs:
o Medical practitioners often need to be creative in pts with chronic disease or multiple
comorbidities drug interactions/allergies
o Lack of recognised tx options
o Action of a drug, or s/efx of a drug may be just what is needed (eg. thalidomide, X VEGF X
angiogenesis)
Surgical clinical innovations:
o Interventions or devices (eg. robots)
o Often difficult to test as lack of power (ability to recruit large numbers of patients eg.
paediatric cardiac valves)
o Where no alternative conventional surgical tx exists, innovation being tested may be best
practice (eg. opthalmologic surgery for adolescents with keratoconus)
Unapproved clinical innovations:
o If something not TGA approved Special Access Scheme:
Import/supply unapproved therapeutic good for a single pt, on case by case basis
(some private insurance companies may foot the bill)
Category A: persons who are seriously ill with a condition from which death is
reasonably likely to occur within a matter of months, or from which premature
death is reasonably likely to occur in the absence of early tx
Category B: all other pts
With the exception of drugs of abuse that are prohibited by law, any unapproved
therapeutic good can potential be supplied via the Special Access Scheme
Clinical innovations are not only directly focussed on physical condition of pt (also trying to
contribute to new knowledge), may also involve improvmeents to staff/pt safety, performance (eg.
quality assurance activities in hospitals how many days should you leave an IV in before the area
becomes red), addressing other deficiencies (incl managing data eg. privacy and confidentiality
laws)
o Guardianship and Administration Act (2000) QLD any research where youre dealing with
a population that may lack capacity to consent (eg. palliative, geriatrics, psychiatry)
o Public Health Act (2005) QLD notifiable diseases
Other rules governing innovation:
o Protect the innovator (authorship and management) Intellectual property
o NHMRC statement on authorship
o Patents, trademarks, designs
o

o
Pharmaceutical Patents Review: evaluating whether the system for pharm patents is
effectively balancing the objectives of securing timely access to competitively priced
pharmaceuticals, while fostering innovation and supporting research
Consent to Medical Treatment
Recall:
o Anorexia: issues or refusal, competence, autonomy
o Intellectually disabled: substituted or surrogate consent
o Teenagers: attribution of competence
o Dementia: competence, consent, best interests
Terms and concepts: consent and the law of trespass, trespass and negligence
Ethical basis of consent:
o

Elements of valid consent (ethical and legal requirements):
o 1. Authorisation is voluntary/uncoerced
o 2. Patient is competent
Believe the information provided
Comprehend nature of situation
Weigh up risks/benefits in light of values
Decides, chooses, persists with decision acts
Communicates and can account for choice
o 3. Patient is adequately informed (broadly speeking)
o Consent must cover actual procedure (? Some exceptions)
o Procedure must be legal in itself (X euthanisation, sterilisation)
o Consent given to specific doctor (? Should be explained who exactly is going to be doing the
case/procedure)
o Being informed (3.) is NOT an element of competence (2.) You can make a competent
decision even if you are inadequately informed, but you may have made a different decision
if you were better informed you make a competent decision in the light of whatever
information is made available to you
o Competence is a characteristic of the person making the decision, not the information
available
Consent and the law of trespass:

o
o
o
o
Invalid consent unauthorised invasion trespass (tort/civil wrong against a person, land
or property)
Trespass against person
a) Assault: intentional or reckless act causing fear or harm
Criminal law (occcasionally medical) results in Prosecution
Civil law (uncommon) results in recovery of Damages
Trespass actionable per se, even if life saved (eg. JW had card that explicitly
refused transfusion, won case for trespassing)
b) Battery: intentional or reckless application of force without consent (with or
without damage about intention) eg. being battered
No valid consent Trespass, examples: Ignoring an advanced directive refusing a blood
transfusion or operating on left arm instead of right
Operation on left arm consent given complications occur, of which patient WAS NOT
warned

Negligent failure to disclose relevant risks consent, but reduced quality of
consent arguably, I would not have consented to this operation had I known
these risks were involved generally less blameworthy than trespass
Negligence, need to establish: a) duty of care, b) breach of standard of care, c)
breach caused damage (If you had told me that, I wouldnt have chosen that
surgery at all)
Trespass, no need to establish damage (actionable per se), though damage usually
present
Tresspass and negligence:
o Invalid consent actions in trespass (requires only a broad indication of nature and
consequences)
o Insufficiently informed decision-making actions in negligence (negligent in informing of
the risks requires a more extensive disclosure of risks/benefits)
o Informed consent is a confusing term in Australia
QLD Statues for incompetent persons: shift of decision-making power, substitute decision-making,
Powers of Attorney Act QLD, Guardianship and Administration Act QLD, advance refusal/advance
consent
o Anomaly in QLD law: consent required from substitute decision maker to withhold futile
treatment (you have to get consent to NOT keep txing, otherwise must keep giving futile tx)
meant to be protection against unilateral decisions
o Other states common law: doctors not obliged to provide futile tx
Types of consent:
o Current <-> advance
o Express <-> implied
o Verbal <-> written
o Clinical practice <-> clinical research
Consent forms: event vs process
Importance of consent for patient safety:
o Rogers vs Whittaker: risk was 1 in 14 000 that the woman wanted to know about (she won)
o Removal of transplanted kidney instead of polycystic kidney: failure to read records, failure
to spend sufficient time obtaining consent, theatre list confusion
o Removal of healthy breast instead of cancerous breast: error on consent form during busy
morning session, failure to check records
o Inadequate consent processes can lead to errors and harm: pre-admission clinics are good
where consent is taken in more relaxed fashion, interns should not be the ones obtaining
consent but more experience registrars (hierarchical culture can lead to errors and harm),
surgical checklists and processes
Informed Decision-Making
1. Consent to Medical Tx
2. Informed Decision-Making
3. Refusal of Tx

More detailed information is required for standard of care that will negate negligence, though valid
consent only requires a general/broad indication of tx
Law of Negligence:
o A duty of care
o Breach of standard of care
o Causation
o Damage
o In cases for provision of information, we are interested in either B or C
Standard of care for disclosure: legally required standard of care is the exercise of reasonable care to
avoid foreseeable risks, where reasonable care is that of the ordinary skilled person exercising and
professing to have that special skill, and where forseeability is limited by considerations of proximity

Disclosure of information
Disclosure of risks
What is reasonable standards:
1. Professional standard (Bolam: UK)
2. Reasonable person standard (US) Australia generally uses this, though our
standard is high
3. Particular person standard Australia also uses this
Rogers vs Whitaker: doctor has a duty to warn a pt of a material risk inherent in
proposed tx
Court and NOT reasonable body of opinion within the profession that
decides which risks are material (ie. NOT Bolam Principle how the
profession would behave)
Appropriate standard of care is decided after giving weight to the
paramount consideration that a person is entitled to make their own
decision
A risk is material if:
o A reasonable person in the pts position, if warned of the risk, would
be likely to attach significance to it; or
o The medical practitioner is or should reasonably be aware that the
particular pt, if warned of the wirks, would be likely to attach
significance
o Causation:
Objective (reasonable pt) whether reasonable patient would have had the tx
Subjective (particular pt) whether this patient would have had the tx (problems of
hindsight bias, and this must be demonstrated, not claimed difficult to do this and
several cases have been overturned due to judging that pt would have had the tx
anyway in favour of doctor)
NHMRC Guidelines on providing information to patients:

o Nature of illness
o Proposed approach to investigation, diagnosis and tx
o Expected benefits, common s/efx
o Known risks: common though slight, rare though SEVERE
o Material risks
o Who will undertake the procedure
o Degree of certainty of any diagnosis or outcome
o Likely consequences of not proceeding
o Any significant long-term effects
o How information is conveyed is influenced by:
Seriousness of condition
Nature of the procedure: necessary or elective
Likelihood of harm
Current accepted medical practice
Pts attitude and level of understanding
o Presenting information:
Form pt is able to understand
o
o
o

Allow sufficient time to reflect, ask questions and consult with sig others
Repeat key information, give written information (use diagrams if appropriate)
Pay careful attention to pts responses to help identify what has or has not been
understood
Therapeutic privilege: a doctor is justified in withholding information when he judges on reasonable
grounds that the pts health, physical or mental, might be seriously harmed by the information.
Justification may also exist for not imparting information when the doctor reasonably judges that a
pts temperament or emotional state is such that they would be unable to make the information a
basis for a rational decision
o One exception to full disclosure give information will cause harm
o Battersby v Tottman and State of SA 1985
o Rogers vs Whittaker: acknowledges doctrine of Therapeutic privilege as an exception to
general duty of disclosure, but confined to cases where there is a particular danger that the
provision of all relevant information will harm an unusually nervous, disturbed or volatile pt
v narrow, not good enough that pt is a bit anxious for having the procedure
o Even if pt expressly asks doctor to make decisions and does not want the offered
information, doctor should give the pt basic information about the illness and proposed
intervention (legal requirement to still give a broad idea of what is going on)
Recent law reform: Civil Liability Act 2003 statute (now) takes over Rogers and Whittaker
o Before this: standard required is that of an ordinarily competent professional exercising
reasonable care and skill
o Then Medical Indemnity Crisis (just going to stop delivering babies) determination of
standard of care is returned to profession (Bolam standard) Bolam v Friern Barnet Hospital
Management Committee
o Now: greater power to court to determine standard of care, particularly for disclosure
A professional person does not breach a duty provided that the professional acted in
a way that was widely accepted by peers as competent
Exceptions:
If peer opinion irrational or contrary to written law
If liability arising from the giving or failing to give a warning, advice or
information in relation to the risk
Peer opinion doesnt have to be universally accepted to be considered
widely accepted, but does not apply to a doctors giving (or failing in giving)
a warning, in relation to the risk of harm to a pt
Usually Bolam except for: irrationality condition, or professional opinion being
judged more critically by evidence cases involving provision of
information/warnings of risk to pts before they undergo a procedure that involves a
risk of injury
No breach of duty of care (disclosure) if pt is informed of the risk that
A reasonable person in pts place would require to enable them to undergo
the tx: Proactive duty (reasonable person)
Doctor knows (or should) that the pts wants to be given before deciding:
Reactive duty (what THIS PARTICULAR person wants to know)
May weaken the disclosure test in Rogers v Whittaker in some cases by:
Imposing a greater level of objectivity on the pts position (what THIS

PARTICULAR pt has concerns about and what they would want to know)
compared to what this particular patient WOULD ATTACH significance to
o

Causation must be established on the balance of probabilities (civil law)
o Breach of duty of care must be necessary condition for harm
o HCA strict on hindsight bias: knowledge of the misfortune that has followed the tx will tend
to colour a pts response
o Plaintiff must demonstrate causation that they would not have had tx if they had been
adequately informed statement on this not conclusive now Court very in favour of
doctors (has been criticised by consumers, pts, ethics advocy groups that Court is too much
in favour of doctors now)
Loss of a chance (pretty much snuffed out by HCA now):
o Normal negligence standard: balance of probabilities that the doctors action or omission
caused the harm some negligence suits decided in favour of pt on basis of loss of a
chance of a better medical outcome than what occurred
o Loss of a chance: to have something more in my favour case decided by proving that the
chance of a better outcome was a possibility
o Recent High Court case: Tabet v Gett HCA ruled common law in Australia does not allow a
plaintiff to obtain compensation on basis of a loss of chance action
D-P Relationship: Stereotyping and Countertransference
The good physician tx the disease; the great physician treats the PATIENT who has the disease
tell me about this pt, what are social/mental factors that may change the way I treat
Know yourself and your issues: understand what you bring to the table (your blindspots and biases)
Stereotyping (will affect how you diagnose/tx): attribution of a set of global characteristics on the
basis of one or more observed characteristics, culturally based, may be positive but often negative
o Cognitive short cut can result in failure to properly diagnose b/c of attribution bias or
selective attention (eg. mentally ill pts have high rates of undiagnosed physical health probs
dont get same level of tx)
o May be two-way process: pts will stereotype you
o Medical paternalism
o Narrowing the spectrum focus on the disease not the person with the disease
Counter-transference: intense emotional response to a person without obvious basis, activated in

clinical or other close interpersonal situations, may be positive or negative
3 parts of the therapeutic relationship: 1. Therapeutic alliance, 2. The Transference, 3. The
Countertransference
o Therapeutic alliance is the rational (implicit) contract between D-P, may be straightforward
with mutual cooperation OR may be complicated by covert agenda (the pts unconscious
and unspoken wishes and needs the TRANSFERENCE)
o What do they come to the relationship with? Are you the 3rd doctor theyve seen on this?
Elements that contribute to a pt becoming difficult:
o Patient factors: unrecognised psychiatric disorer, somatisation (great attachment to physical
symptoms or translation of emotional symptoms to physical ones), alcoholism, personality
disorder, previous exp of disappointing care (come in quite negative from the get go),
egocentric (rude and entitled tendency to rush them through and avoid often when
you start getting into trouble)
o Doctor factors: strong assumptions about how pts should behave or medicine should be
practised (eg. if they dont take on board advice straight away thats their prob and not mine
dangerous thinking), narcissism, poor communication or psychosocial skills (cant identify
pts situation), cultural gaps, lack of experience (say I actually dont know, were going to
have to work through this together), stress or overwork
Transference: positive or negative feelings about the doctor, some overlap with alliance, potentially
problematic if result is dependency or premature termination
o Factors that increase transference:
Vulnerable personality (eg. Borderline Personality Disorder who have
overdosed/self-harm come to hospital, may actually want emotional nurturance
and here is a place to be looked after v sensitive to perceive
rejection/abandonment everyone rallies around them, but this is just a st, not a lt
strategy have to go home after), may rigidly project their expectations on to the
present
Pts anxiety about their physical or psychological safety (eg. when sick and afraid
increases attachment pt has to you)
Frequent contact with a service or ind
o Positive transference and alliance: maximises the placebo effect (eg. strongly predicts tx
response in depression if pt has belief in you as a therapist, positive and hope they can
get better)
Expectation of a successful outcome, shared goals an understanding of tx process
(have trust with you and so will allow you to put them through a bit of pain), exp of
doctor as competent and caring
Unconditional positive regard must be genuine and not eroticised
o Negative transference and alliance: maintaining alliance depends on containing this
negative emotional reactions to pts cannot be avoided or denied need to acknowledge
these and manage them (not necessarily share with pt)
Counter-transference: positive or negative feelings about THE PATIENT, positive feelings
boundary probs, negative feelings deficient clinical care
o Acting on the counter-transference:
Reaction formation to negative feeling: go overboard and overcompensate in tx

Helplessness in the helper (own fear of being incompetent)
Unconscious punishment of pt (eg. in ED, pt has overdosed put to back of cue,
use large cannulas with no anaesthetic)
Inappropriate confrontation of pt
Desperate attempt to avoid ot extrude pt from care
Responding to positive transference (pt thinks highly of you):
o Idealising transference: recognise their underlying need for positive identification, do not
collude by hiding your own personal faults and failures (ok to admit when you dont know
something), acknowledge the achievements and responsibility of the pt (partner in their
own health You managed it well last time, what did you do then? [I have faith in you])
o Erotic transference: be professional but not aloof or cold approach to pt, if persists refer on
Responding to counter-transference (your own opinions of the pt): look out for personal signals if
you are unusually positive or negative before their appt, unusually accommodating or
unaccommodating (eg. late/cancel their appt or Ill stay back late to see them why do you feel like
you need to overstep the mark with this particular pt), youre avoiding discussing this pt with peers
o If you have positive counter-transference: identify reasons, maintain vigilance against
seductive behaviour (eg. trying to use better tx, alternate tx), avoid reaction formations
(negative responses to counteract overly positive feelings)
o If you have negative counter-transference: clarify the source, look for the person behind the
negative characteristics
Identification and Projection: You identify with a pt, make assumptions of what they know, dont
want to be seen speaking down to them they miss out on information
o This person is like me, this could be me
o Taking a part of yourself that isnt being acknowledged and projecting it on someone else, as
if its coming from them (eg. pt can project to you: youre ignoring me, why are you acting
this way to me when youre not doing anything unusually)
o Commence with recognition of self in another (incl rejected aspects of self) other person
may be rejected if identification is with rejected part of self
Stereotyping and negative counter transference threats to beneficence
Stereotyping and negative transference (pt to you) threats to non-malfeasance (wrongdoing,
discharge of public obligations existing by common law, custom or statute)
Positive counter-transference may threaten professional boundaries
Not how one feels about a pt that is most imp to care, but how doc behaves towards them
When pt creates in doctor feelings that are disowned or denied, errors in diagnosis and tx more
likely to occur
Tolerate pts affect being firm and kind, rather than punitive or overinvested
When working with pts:
o Avoid arguments that make unreasonable demands
o Given them the benefit of the doubt
o Dont worry about being used b/c all pts use their physicians to some extent
o Referral to a mental health clinician if accepted by pt or discussion with them if not, may be
useful early
Balint Group: meetings where doctors explore the emotional exp of pt care facilitated by people
trained in psychotherapy assist with identification of stereotyping and counter-transference
Paediatric Ethics and Law: Infants and Young Children
Special status of children in society: extra protections due to vulnerability, restricted autonomy,
potentiality (to become adults), incapable of autonomous decision-making
Parents are natural surrogates, however not absolute
UN Convention of the Rights of the Child: the best interests of the child shall be A primary
consideration
o Now: Marion best interests of the child are THE primary consideration
Parents recognised ethically and legally as natural de facto decision-makers: provide secondary form
of protection: care about their children, well situated to decide where interests conflict bw family
members (balancing act), should be permitted to raise children to their own standards and values
(but not of physical appearance eg. surgery), family relationships flourish when given freedom
from intrusion
Sources of parental power:
o Welfare jurisdiction of Courts
o Supreme Courts power to intervene under parens patriae (the King ultimate parent of
children)
o Family Courts Family Law Act 1975 (Cth)
o Criminal law imposes obligation on parents to provide for necessaries of life (incl obtaining
necessary medical tx, eg. if child has leukaemia, cannot withdraw child from hospital)
o Parental responsibility continues even if parents separate or remarry unless:

Authority has been varied by a court order (eg. one parent got an apprehensive
violence order or is absent)
Both parents have entered into a parenting plan that removes decision-making
capacity (prior agreement eg. one parent doesnt want to be involved as they are
going to be overseas)
o Where dispute bw parents as to parental responsibility, evidence should be provided that
responsibility has been removed from one parent (eg. Child Support Order or Court Order
when parents are separated)
o Parental consent to healthcare needed prior to any intervention: civil and criminal liability,
professional disciplinary action (if fail to get consent from a parent)
Contentious decision-making stages:
o Parents consent necessary until child reaches sufficient maturity Gillick competence: as
children mature, their capacity for understanding the nature and implications of health txs
increases recognised that children should be involved in care decisions ,though this
should be appropriate to the type of decision theyre making
o If parents neglectful/abusive, or where seeking parental consent may be risky rather than
protective (eg. seeking consent for pregnancy test if have strict/abusive/non-understanding
parents), parental consent is inappropriate or offers no protection to the child
Adult consent: based on capacity of an autonomous person to understand information relevant to
the decision, that is freely and voluntarily given for a specific purpose, and is based on the adequate
disclosure of material information including potential risks and benefits same standard applies to
parental consent
Principle of best interests:

Principle of no harm carries more ethical weight in paeds than the principle of respect for
parental authority
Potential conflicts:
o Uncertainty or conflict about what is in a childs best interests (eg. surgery or just adjunct
chemo/radio)
o Conflicting values, motivations and beliefs among decision-makers or decision-makers and
older children
o Inability to predict future outcomes with any degree of certainty
o Choosing bw 2 options of relatively similar potential for risk/benefit
o Resource allocation (eg. senior clinician who also has to manage the budget)
Types of potential conflicts:
o 1. Bw parents
Differing beliefs about childs best interests
Court authority needed to assign the authority to make decisions about a child to
one parent, re Jodie (2013): child had gender dysmorphia, wanted hormone tx for
child, father was absent overseas, doc wanted to make sure one parent was able to
consent for the child
o 2. Because of limitations to parental power: non-benefit limitations and where parents
wishes conflict with current norms and laws (eg. sterilisation, female genital mutilation)
Termination of pregnancy QLD: State of QLD v B (2008): if child 12yrs, has to go to
Court so parents arent allowed to agree to it parents may have a conflict of
interest and something that should be viewed v objectively
o 3. Bw clinicians and parents
Refusal of life sustaining txs that can be overridden (eg. usually about Courts
allowing doctors to give JW blood transfusions)
Recent case Sydney Childrens Hospital Network v X (2013): 17yrs mature young man
who didnt want transfusion, parents agreed, clinician agreed (leading Professor of
Medicine), 40% chance survival with transfusion, wasnt much worse without (grey),
courts said transfusions to go ahead, and gave hospital ancillary tx - appeal, so close
to 18th birthday in 2 months and appeal was overturned still gets transfusion,
judge did recognise was mature man sanctity of life first
o
o

Blood transfusions: Transplantation and Anatomy Act 1979 (QLD) morally
comfortable if took decision-making authority from parents, as decision was not
theirs to make morally negated their involvement
No criminal liability by practitioner administering a blood transfusion even
where a parent has refused consent if:
o Blood transfusion necessary to preserve the life of the child
o Second medical practitioner agrees
o Blood transfusion given in way as if consent had been given by
parent
When doctors wish to withdraw or withold txs and parents disagree, Glass v UK:
severely disabled child, no life of suffering, smiled, enjoyed life as a 1yo admitted
to hospital, docts didnt immediately start aggressive tx parents felt docts were
being more soft than normal as though docs felt they wanted to let the child die
usually Court will agree to withold tx oif child lives with INTOLERABLE SUFFERING
Court found this child HAD an interest in life, no reason to withhold care
dont consider if hard for parents (Childs interests paramount)
4. Bw child (pt) and parents (eg. chronically ill children)
Child with chronic illness who has simply had enough, Hannah Jones (re M (Medical
Treatment Consent) 1999: judge overrode decision of 15yo who refused heart
transplant and looked like would have good outcome from heart surgery if dont
have good prospect post-intervention, judge will likely grant child refusal
5. Bw 2 children (eg. co-joined Siamese twins)
A (Children) Mary lives off Jodie (her lungs and heart are too deficient and if born as
a singleton, would not have been viable and would not have been resuscitated)
each child has an alienable right to life Mary is killing Jodie (wouldnt be able to
live like that much much longer) Court cant consent to manslaughter or muder,
they have to demonstrate Mary didnt have an interest in her life as will have an
intolerable life of suffering
6. Because of uncertainty about best interests (eg. where may be perceived that parents
may stand to benefit by intervention of tx
Pt Ashley has static encephalopathy infant level mentally growth attenuation
via oestrogen therapy, hysterectomy, bilateral breast bud removal, appendectomy
(random) to keep her small Parents say improve QOL by limiting growth in size as
would be able to stay at home than be moved to residential care facility
reasonable argument, done with Court Order
If decisions cannot be reached, or uncertainty about who is authorised to make particular decisions
for a child, applications to:
o Family Court under its welfare jurisdiction OR
o Supreme Court under its parens patriae jurisdiction
o Courts will consider:
1. If tx is within the boundaries of what parents can consent or refuse
2. If not, Courts will consider whether giving, withholding or withdrawing a tx is in
the best interests of a child
Decision 1 Common Law and Marions Case (gender reassignment surgery):
o Complexity of the question
o Sig risk of a wrong decision being made without the involvement of the Courts (irreversible)
o Consequences of the decision/procedure were particularly grave
o Procedure irreversible and invasive
o Potential for conflicts of interest bw parties involved: parents, medical practitioners
o A special case that falls outside of boundaries of decisions parents can make has to go
before the Courts (things parents shouldnt be able to make decisions about on their own)
Under 18, need Court Order to be sterilised, though 100s of illegal ones go on
Decision 2 Statutory Law Reflects Common Law:
o Family Law Rules 2004 apply to special medical procedures
o Proposed medical procedure is in best interests of a child
o Likely lt physical, social and psyc effects of procedures not carrier out
o Nature and degree of any risk
o Whether any alternative and less invasive tx available (eg. palliative care)
o Whether procedure necessary for the welfare of the child
Txs requiring court approval: sterilisation, BM/organ donation to non-immediate family members
(has to demonstrate benefit to child b/c of their relationship with extended family member), TOP if
not Gillick compt, gender reassignment (irreversible so Courts try and wait until 18yrs), hormonal tx
for gender dysmorphia (reversible so Courts tend to agree), innovative txs (eg. new chemo)
Legislation in NSW and SA lowered age of majority for consent to 14 and 16 respectively
Refusal of Tx/ Tx Without Consent

Elderly man writes AHD which instructs that he is not to be actively txed in any way should he
become mentally impaired and totally dept on others Doc considers this might be a short-sighted
direction might be tx for a transient mental impairment pts have an ethical and legal right to
refuse tx but docs may advise for good medical reasons and have a professional obligation to see
why a refusal is given

Symmetry bw consent and refusal:
o Voluntary, not coerced (family cant force pt to make a decision)
o Informed
o Competent pt (possible asymmetries your advanced refusal may now be irrelevant)
o Specific procedure (need to be stipulated in AHD)
Ethical dilemma: competent pts refuse tx which is in their best interests BUT duty of care motivates
action in best interest of pts
Interpreting refusals: refusals and competence

o Presumption of competence
Analogous to presumption of innocence
Must be rebutted by demonstrating some deficiency in cog functions/decision-
making capacity, pt not obliged to demonstrate competence
Elements of competence:
Believe, comprehend and retain information
Understand nature and effect of decisions
Evaluate information and consequences
Decide, justify decision with situation/values
Communicate decisions
o Possibilities:
Pts change their minds: ask what has happened in the meantime is it Aunty
Margaret?
Medical conductions like depression can reduce competence: change cog function
may not mean pt now incompetent (vast majority of mentally ill are competent)
Depression may affect competence still competent in eyes of the law, but when
you tx their depression, may change their mind about tx of other condition from
refusal to consent
Depression may not remove technical competence, but brings about a
different decision
o Mental illness does NOT imply lack of competence
o Refusal of tx should trigger the exploration of REASONS for refusal, NOT DEFINE the pt as
incompetent
o
o
Risk-related standard of competence: assymetry:

Is idea of different levels of competence coherent?
Rather seek greater level of evidence for presence of competence, when triggered
by a refusal in a serious situation not holding to a higher standard of competence
but being sure you are looking for evidence that the pt is definitely competent
Formal/procedural requirement (process to reach decision) rather than substantive
requirement (what the decision arrived at is)

Higher risk is not = greater complexity (when risk is huge, sometimes decision is very
simple)
o Competence: capacity in terms of ones own beliefs/values
o Rationality: another way of looking at the formal/procedural idea of competence rather than
the substantive idea (if it is not the decision you would have made, doesnt make the
decision irrational)
2 Types of rationality:
o 1. Substantive: particular global value system (dont impose our values on the pt)
o 2. Procedural:
False belief (make sure they havent made faulty inference or drawing from false
material faulty decision)
Faulty reasoning
Inconsistencies in beliefs
Challenge the weighing of values (challenge pt with their belief, there is room for us
to say wait, how come you believe X if you believe Y?)
Dispositional (more experiences in life) autonomy requires:
Education (evidence thats relevant, answers to questions they may have)
Interpretation and negotiation (sometimes challenging the way theyve interpreted
things or may not have consistency in beliefs)
Discussion of false beliefs, reasoning, weighing
Occurent autonomy is what some mature minors have
Common law supports technical competence (no substantive rationality requirement) but also
appears to support the risk-related standard (higher level of competence required on higher level
of risk)
Informed refusal requires awareness of:
o Consequences/risks of tx
o Consequences/risks of no tx
o Alternatives
Common law right to refuse tx, even if refusal leads to death
Legal instruments in QLD: POA Act 1998, Guardianship Act 2000
Refusing tx for children:
o 1. Blood transfusions: Transplantation and Anatomy Act 1979 QLD mandatory transfusino
where life is at risk, overrides parental refusal
o 2. Refusing immunisations: no legal coercion in Aus, though financial incentives
o 3. Refusing newborn screening: no legal requirement
o Principles: If urgent (in your face now)/life saving subject to legal coercian
Influencing factors of prevalence, seriousness and proven intervention
o Minors have asymmetry bw consent and refusal
Mental health legislation: can override refusals (involuntary admit someone into a mental health
hospital)
Change in circumstances, esp in advanced refusals if circumstances dont line up with that stated
in AHD, those conditions havent risen
Problem of resources right to refuse may imply unjust resource distribution, eg. If pt refuses tx X
but says yes to tx Y (much more expensive), what obligation does the community have to that single
pt? Should they pay the gap?


(see Ethics Review Midsem 1 for notes from before the Midsem)
Self-Induced Disease
Thinking: obesity, smoking, alcohol, self-multilation, base jumpers, broken necks in footy, HIV/AIDs
pts sections of society have said they could have avoided it, etc
The blame game: we all blame others, or some others, for all or a degree of ill health and hold
people responsible for their own conditions doctors are no exception (counter-transference,
often unconsciously)
o Lung cancer pts should pay all of their medical expenses 20% yes
o Lung cancer pts should pay half their medical expenses 75% yes
o Gov looks at inds to take more and more responsibility QH estimates 9% hospital
admissions are avoidable through preventive care and early disease management inds
need to play their part by adopting healthier lifestyles
The responsibility game:
o Individual model:
Lifestyle diseases
Self-management, self scruting
Risk prevention and reduction
Healthism, health industry, health consumerism
Assumptions: Freedom, choice and control, ease of behaviour change, lack of
economic impediments
Eg. Australian Better Health Initiative from 2006 encouraging active pt self-
management of chronic conditions, ind focused AND improving communication and
coordination bw care services
o Structural model: raise questions about the level of ind responsibility
Employment, incomes
Housing, environment, infrastructure
Social conditions, public health
Commercial limitations
o Pt charters and insurance requirements: rights and responsibilities
Threshold for copayments of chronically ill and cancer pts are to depend on their
compliance with screening and tx regimes suggests if you dont behave yourself
against edicts, you wont get txed, further down waiting list quasi-cohersive
activity going on
What is the status and enforceability of any obligation to maintain health?
What are the possible negative consequences of these impositions?
Trying to utilise public money in the best possible way
o Government factors:
Gets revenue from harmful substances but on other hand strong commitment to
public health funding
Commitment to welfarism in health
Reluctance to explicitly ration/allocate
Temptation to shift costs and blame to other jurisdictions or inds
But can we evade all personal responsibility?

o Concept of a morally responsible, free agent we cant sit down structural model end
we are a freedom-loving society, so must be a measure of ind responsibility in health
o Medicalisation tends to diminish responsibility exacerbates victimhood if something
shifts under health field becomes health responsibility and attenuates ind responsibility
o BUT causal responsibility does not always imply moral responsibility causal responsibility
is complex and underdetermined
Does the existence of a habit/lifestyle imply that it was freely chosen?
What should we expect people do, or refrain from doing, in the light of pressures of
society?
If there is a bona fide scientific explanation responsibility seems to evaporate
Causal responsibility does not always impy moral responsibility
In a therapeutic relationship, use idea of responsibility to:
1. Not completely blame the person
2. Enlist an idea/feeling in that person in order to help them help
themselves
Attributing responsibility: we tend to blame people for probs as most of us are lucky enough not to
find ourselves in similar situations more defence mechanism as we would not want to view
ourselves as similarly disposed so blame them, than a disinterested, justified moral judgment
o Being in control and feeling safe tends to make us distance ourselves from those without
control, as we dont like to identify ourselves with them
o We tend to empathise less with those who are victimes of their own recklessness than
victims of uncontrollable illnesses
o It is not that prudent inds ought to enjoy better lives, it is just that they are more likely to do
so
o If fundamental aim is to improve health, we should focus on the cause(s) which can best be
manipulated to achieve improvement positive incentives, medical savings accounts, no
barriers to care (eg. obesity, poor results from ind programs, but inds have been the focus of
interventions shift focus?)
Can We or Should We Consider Obesity a Self-Induced Disease?
Obesity bias: 1/3 medical students have unconscious anti-fat bias potential impact on care
Obesity: strong evidence to show it is result of a range of factors (genetic, environment,
psychological and physiological) environmental in recent times have had strongest impact in
shifting population patterns low income, low SES areas, food insecure households more at risk of
obesity (not just inds choosing certain lifestyles, particular environments support the development
of particular lifestyles or create barriers to more healthy lifestyles)
o Key drivers of food insecurity are poverty, unemployment lack consistent access to
healthy good, high stress, choose inexpensive, calorie-dense food as lack access to nutrient-
dense alternatives
o Inds do not exist in isolation inds ability to control diet and physical activity determined in
part by enabling factors and set of social circumstances they live in
Fat people more likely to experience weight discrimination, weight stigma, weight bias (reluctant to
get health care due to negative attitudes if havent lose weight, professionals think there is
something lacking in their personality) all these factors reduce QOL with both immediate and lt
consequences for emotional and physical wellbeing
Dieting behaviours and weight-related probs: while nutrition and dietetic scientists continue to
research there has been little evidence based for much of what has passed as expert medical
recommendations over the last 100 years vast majority of people who attempt weight loss do so
without supervision, sufficient information or with misinformation
o Physiological outcomes:
1. Depressed or slowed body metabolism
2. Increased set body weight
3. Fat malabsorption
4. Weight cycling (yo-yo dieting)
5. Drug dependency (eg. appetite supressants)
6. Malnutrition
o Psychological outcomes:
Body-image dissatisfaction, low self-esteem
Fat phobia
Food preoccupation or obsession (XX wide-spread acceptance that restricted eating
diets are acceptable behaviours)
Health focus rather than weight focus is much better, addressing ineffectiveness of a lot of strategies
that have been embraced
o 1. Dominance of weight-centred health paradigm in public health policy
o 2. Harms done to people in name of health
o 3. Professional due to historical investment in concept of an ideal body
o BMI 30-35 not associated with increased mortality, being overweight was associated with sig
lower all-cause mortality evidence that being overweight or obese is not necessarily going
to increase your all-cause mortality
o Fitness has more positive impact on health than simply being non-fat
o Need to redefine indicators of good health backlash against medically defined model of
healthy weight and promotion of thin ideal fat rights and size acceptance groups
o Ethical pitfalls of current programs to prevent obesity: negative stereotyping, stigmatisation,
blaming of victim, reinforcement of health inequalities
What should be done: ecological approach (relation of living thing to one another and physical
surroundings to map the whole problem), rights based approach, Health At Every Size (HAES)
approach
o Changes to obesogenic environment food labelling, more pedestrian/cycling, nutritional
standards for food in all gov facilities and schools, limit marketing to children, increase costs
of high fat/sugary products, increase breast feeding as the norm
o HAES: adopting health habits for sake of health and wellbeing rather than weight control
1. Weight inclusivity: accept and honour diversity of body shapes and sizes
2. Health enhancement: support policies that equalise access to information and
services and personal practices that improve wellbeing health equity for all
3. Repectful care: acknowledge biases and work to end weight discrimination
4. Eating for well-being: promote flexible, ind eating based on hunger, satiety,
nutritional needs and pleasure being considerate into what we put into our body
5. Life-enhancing movement: support physical activities that allow all people to
engage in enjoyable movement, to the degree they choose
Justice and Resource Allocation in Healthcare
Transplant guidelines: active substance abuse automatically excludes a pt from receiving liver
transplant and will be a consideration for dialysis here in Australia, when prioritising who gets the
liver, make moral judgments of character and social factors (good home circumstances which will
disadvantage the poorest)
o Age > 60yo cut off for initiating dialysis
o Psychiatric or other serious medical disorder disqualifies a pt from dialysis
o Obese people have poorer prognosis with kidney transplant
3 Questions of Justice:
o 1. Is health care special?
o 2. When are health inequalities unjust?
o 3. How can we meet competing health care needs fairly under reasonable resource
constraints?
Health is morally imp: grounds our opportunity to pursue goals, prevents/reduces pain and
suffering, prevents premature loss of life, its loss has profound psych/existential/moral meaning
Public policy is a moral endavour creates possibilities for some and excludes others, must respect
diversity but find enough values agreement to make decisions for the common good
Ageing population healthcare spending has been demonised you must reign in the healthcare
budget / reduce service by 10% clinicians asked to do that but dont have skills to make those
choices
Queensland:
o Category 1: admission within 30 days desirable for a condition that has potential to
deteriorate quickly to the pt it may become an emergency
o Category 2: admission within 90 days desirable for a condition causing pain, dysfunction or
disability, but which is not likely to deteriorate quickly or become an emergency
o Inefficiency: $2-3b/year spent inappropriately mostly from misuse of MBS funding by ind
physicians and corporate owners of medical businesses
Keeping a premature baby alive: $$$$$
Prolonging life for family members to fly and say goodbye
Providing fertility services and genetic studies (scope of medicine issue)
Providing ongoing bereavement care
Demand and new technologies, and not ageing, have contributed to majority of increase in health
expenditure in last 20 years
Equity concerns for vulnerable, older people: if cut the budget when dont have RNs bathing pts
failure to rescue so increased mortality rates
Who decides who gets what?
o Opportunity cost: something else foregone or loss of value for the person who does not
receive tx
o Choices bw competing alternatives also have economic implications

Health dollars scares and compete with other expenditure (haemodialysis/ICU v expensive
resource)
o Rationing is another term for resource allocation diff departments at hospitals compete
for their pts getting into ICU
Principle of justice: a crucial element of the common morality 2 broad conceptions: 1. Social
solidarity, and 2. Ind rights and responsibility (eg. if pt non-adherent, want to divert resources to
someone who is following their tx regimen BUT what if that pt was homeless/had low IQ stopping
them adhering need to look into their background)
o Procedural justice: appeals mechanism to go to
Distributive justice: fair distributions of burdens and benefits (social goods). Theories of justice
distribute goods according to
o Criteria: equality, need, contribution, effort (has this person done things for society), market
forces
o Theories: equity/egalitarian, utilitarian, merit, libertarian (US)
o Controversial criteria:
Age (ageism?)
Type of illness (acute or chronic expected to comply with tx)
Self-induced disease (lower priority?)
Effectiveness of tx (near futile tx?)
Demand pressure groups (irrational/unjust? eg. high cost drugs, is that young,
beautiful person worth more?)
o Social Contract Model: social device (rather than formal contract) for identify social
conventions that promote interests of society as a whole citizens give up some rights
(liberty rights) to invest in society
Health care considered a shared public good
Society invests in health care for its citizens when resources are tight social benefit
needs to be considered
All decisions need to be transparent and defensible
Eg. Obamacare: aim is universal access to essential health benefits, mandated
insurance status and fines for no insurance social solidarity model
Individual rights model: this is unconstitutional, infringes ind rights, no place
for gov say dont want my taxes paying for some bum on the other side
of the country)
In Aus more fair: distributive model where we pay for everyone here
o Dworkins Approach: obligation to tx people as equals, best achieved by giving people
equality of resources
What most people would prudently insure themselves against ought to be included
in a universal access health system, but only these items (eg. all people should get
injections against going blind as burden on society is going to be huge) if some
items have disagreement, need to consult with representative people to make
decisions about universal coverage
Given equal distribution of income and wealth, optimum information and no one
has prior information about the specific risks faced by specific inds
Each person could buy insurance protection against various health needs without
gov subsidies or otherwise distorted markets
o

Rawls Approach: equality and liberty are basic, theres a basic level but sort of changes as it
goes up maximum and equal freedom is compatible with that of everyone else (relative)
Rational agents will opt for system that distributes goods equitably IF they are
ignorant of their final position in society
Inequalities tolerable only if they benefit everyone and attach to positions that are
open to all (eg. 2-tier health system like Australias IF it satisfies this condition)
A liberal theory but also concerned with equality concerned with inds but also
fraternity (solidarity) anti-utilitarian
Strong solidarity model in Australia: we like Medicare if you go to ED, we dont
think sick people should be charged
o Campbells Approach: equality and liberty are basic but FRATERNITY IS PRIMARY equality
of access, distribution according to need
Everyone is both a provider (taxpayer) and recipient of healthcare
Everyone must participate in determining the adequacy of the system
Is there a natural or moral right to any kind of health care?
What counts as essential or decent minimum of publicly funded health care?
Is public investment in healthcare the most efficient way to achieve health outcomes? Or
redistribute to other social goods like housing
Deliberative democracy: who decides? Shouldnt be made by doctors at all, as not equipped to make
these decisions currently have been but now refer to Clinical Ethics committees/Citizens juries
o Who decides? Everyone must participate in determining adequacy of the system
(Campbell) Are there ways to effectively capture citizens views on resource allocation?
Citizens juries
For: healthcare is a social contract and uses community resources so community
preferences must be canvassed
Against: public doesnt understand allocation, prone to bias and self-serving people,
non-representative
o Citizens juries have successfully contributed to:
Defining principles and broad priorities of healthcare organisations
Principles that guide balancing: prevention vs cure, community vs hospital, curative
vs palliative
Principles that promote: transparency, provision of adequate information to the
public on services available, safeguards to preserve quality of care
o The Oregon plan: Asked community what they wanted Version 1 looked at first 2 pages
and chucked out (eg. main thing people wanted were removal of ingrain toenails what
they wanted for themselves) Version 2 came out with something that was workable by
ranking with public preferences, outcome and professional judgment
Top priorities in decreasing order: pneumonia, TB, peritonitis, foreign body removal,
appendicitis
Bottom priorities were things people were less likely to have had previous
experience with bias?
o Resolving conflicts need to test for:
Effectiveness: show that policies that infringe moral consideration are likely to
achieve their goal of protecting public health (eg. conscientious objectors
vaccinate your kids!)
o

Proportionality: probable public benefits outweight infringed general moral
considerations (risk/benefit analysis)
Necessity: seek less ethically problematic alternatives (eg. incentivisation rather
than enforcement to achieve desired result)
Least infringement
Public justifications
Eg. Swine flu in Australia Pts rights to travel were withdrawn
Role of legal system:
Courts DO NOT review policy decisions/budget allocations other than requirement
to satisfy administrative laws
Healthcare rationing decisions: courts v reluctant to intervene where doctors divvy
up priorities leave to doctors around EOL, eg. Im very sorry we cant do
anything else with allocation cases, courts rule in favour of doctors
DH guidance on funding unproven tx
Court of Appeal: courts should not be drawn into allocation decisions
No Australian cases
Ind doctors: standard of care depends on available resources once a pt, person should be
txed without limitation in relation to resources available whilst avoiding waste
Doctors and medical institutions should NOT be gatekeepers should be other
people looking at allocation so doctors can focus on providing optimal care to pts
they do have
Pain
What is pain?
o Physical
o Psychological: non-medical states (distress, Takotsubo heart condition, elderly spouse dying
year after other spouse dies), mental disorders
Sensation of unpleasantness or distress with perception of actual or threatened
physical or existential damage (eg. thinking about getting kicked in the stomach)
o Perception based on expectations, past experience (incl with the healthcare system),
anxiety, suggestions, cognitive factors
o Acute or chronic
o Accidental (injury) or deliberate (surgery)
Pain in the nervous system (railway) back pain WAS categorised as disorder of the nervous
system now changed as can be mechanical or unexplainable (phantom limb pain)
Pain is no longer considered exclusively either as a neurophysiological or a psychological
phenomenon now recognised as the compound result of physio-psychological processes whose
complexity is almost beyong comprehension
Pain is whatever the experiencing person says it is, existing whenever they says it does
o Though we generally try to stop the level of medication of pain relief that some pts will
request might lead to an addiction
o Qualia: phenomenal awareness of pain
o Subjective interpretation: some can tolerate more than others
o Science cannot give a complete account of pain quite complex there are known
knowns and there are known unknowns
Pain is contextual
Purpose of pain: to prevent serious damage, teaches one what to avoid limits activity, so no
permanent damage can occur (eg. strain a ligament, limits activity to prevent serious damage)
Outcomes of experiencing pain:
o Can impose limitations affect QOL (impacting self-autonomy)
o Impact lives of others (autonomy of others)
o Can be primary concern during any illness or disease
o Can cause people to want to die when management strategies ineffective (incl fear of
potential for pain fear suffering at the end of life, if you can alleviate their fear of pain,
then they would be happy not to look at euthanasia)
Pain is complex:
o Culture, social interactions, sick role (eg. elderly men dont like to disclose theyre in pain,
badge of honour not to ask for pain relief during child birth, Indigenous have a culture of
non-complaining)
o Beliefs, coping strategies, illness behaviour, emotions (eg. people with chronic illness have
learnt to deal with pain used to level of pain so say 2/10 pain when it is really an ordinary
persons 9/10)
o Physiological dysfunction, length of experience, acuity, neurophysiologic changes
Impact on community: community bears costs incurred in caring for those with chronic or poorly-
treated pain cost to productivity (lost work days), providing medical/allied care
o Pain clinic or palliative care specialist can be called for management of pain in your patient
(pt doesnt need to be at palliative stage)
What we know about pain:
o We know LEAST about individuals response to pain (personal experience, where levels are
different to all people)
o However, sensation of pain is a diffuse entity inherent to the nervous system and basic to all
people
o Acute pain is the primary reason people seek medical attention (presenting complaint)
o However, most common dilemmas involve chronic pain problems, and providing adequate
end of life pain relief
Theories about pain:
o Roman approach: focus on nervous system inflammation leads to pain
o Aristotle: pain associated with peasure soul was heart of the sensory process and pain
was located in the heart, so they linked the two together prevailed until German
scientists provided irrefutable evidence that the brain is involved with sensory and motor
function
o Operant conditioning model: pain behaviour is rewarded by solicitous attention, not having
to work, access to drugs
Munchausen by proxy: usually mother intentionally causing harm to child to draw
attention, sympathy or reassurance to themselves
Tx: ignore pain behaviour, reward non-pain behaviour (eg. physical activity)
Also introduced regimen where analgesic drugs were reduced with patient knowing
(eg. now we do with people in rehab reducing methadone)
Malingering: fabricating or exaggerating symptoms for secondary gain motives incl
financial compensation, avoid school, getting light criminal sentences, etc
A pragmatists taxonomy of pain: by duration, by cause, by major type (eg. inflammatory, somatic)
Ethics pain theories:
o Aristotle: pleasure and pain are material conditions intentional states with a cognitive
intent people come to differ in regard to their judgments, and which are accompanied by
pain or pleasure
o Bentham: pleasure and pain are basic consequences of ethical choices pleasure and pain
rule our lives such that experience of pleasure made good feelings good, experience of pain
makes bad feelings bad
Felicific/Hedonistic calculator (measure good and bad in all situations): intensity +
duration + certainty + proximity + fecundity (ability to reproduce) + purity
(exquisiteness of the pain) = pain
Hedonism is the theory and tradition that says that the good should simply by
understood as the feeling of pleasure
o Peter Singer: the simple moral reason for relieving pain is that it is undesirable (kept quite
simple)
Not all pain is equal sometimes need to prioritise the management of pain (eg. in
triage)
Irrespective of why, no moral justification for not taking that into consideration
something you need to consider with all of your patients
o Modern concepts of pain theory continue to advance form the ideas of Aristotle holistic
approach to care (biopsychosocial model) move from medical model to a patient-centred
approach (what EACH pt needs eg. we now have patient-controlled pain-relief infusions that
they are able to use they have ownership of whats going on)
Centralists: those who concentrate their efforts on the brain and central nervous
system
Peripheralists: those who try to block and modify peripheral structures and
processes
Both approaches have validity
Western culture:
o 1. Enduring pain is character building and morally enhancing
o 2. Pain medication leads to addiction opiophobia
o Specialists see main challenge as opiophobia retroactive approach to pain relief
Is pain management a human right? Respect for autonomy (beneficence, non-maleficence)
o Many clinicians refuse as fear pt will go on to develop a dependence or fear
disproportionate amount of analgesia
o Pain may be a symptom of other things thats happening in the pts life
o Management of other symptoms are rarely classified as rights (eg. it is not really a right of a
person to be txed for dizziness) pain is associated with suffering
o Pain has been set apart becoming a human right cause as most people dont want to
experience pain The unreasonable failure to tx pain is poor medicine, unethical practice
and is an abrogation of a fundamental human right
USA AMA Code of Ethics: Intrinsic dignity of all persons and withholding pain tx is profoundly wrong
o Right of all people to
1. Have access to pain management without discrimination (eg. injecting drug user
requesting pain relief, chronic back pain)

2. Have acknowledge of their pain and be informed and assessed about how it can
be managed
3. Have access to appropriate assessment and tx by adequate trained professionals
Pain control: health care providers are pt advocates, pain control deals with public policy, health
policy, regulation, law enforcement and medical standards fear of litigation continues to restrict
doctors from providing adequate pain relief (though technically you could be sued if you didnt give
enough pain relief though we havent seen this in Australia at this point)
Obligation to pt is prima facie exceptional circumstances to refuse a competent patients request:
o Drug-seeking behaviour
o Providing pain relief might mask other Sx (eg. appendicitis, in paeds to find out exactly
whats going on, can in adults as well)
o Worried about drug-interaction
o Concerned about giving them overdose
o Pregnant women crosses the placenta
Ethical dilemmas in tx of pain:
o 1. Characteristic of pain
o 2. Pain pt
o 3. The system we practice in
o 4. The use of placebos (can be effective, though unethical to use without pts knowledge
stuck in a double bind here)
o Most commonly probs with: providing relief of chronic pain and at end of life, vulnerable
populations
Placebo: I shall please describes pain reduction from mechanism other than those related to
physiological effects of tx all txs have some degree of placebo effect
o Placebo: what happens when you do nothing
o Placebo effect: doing nothing makes things happen
Legal consideration:
o 1. Pain management as an eforceable human right
o 2. Nature of doctors relationship with their patient (fiduciary duty)
o 3. Fear of litigation
Pain management as enforceable right at the mo no current laws exist prohibiting pain
management but managing pain poorly can be regarded as negligent (overall quite pro-pain
management) civil law
o 1. Duty of care was owed (and implied condition that reasonable care by taken)
o 2. Breach in duty of care
o 3. Injury or loss was suffered due to breach (causation show that lack of pain management
caused injury even injury is just mental stress, very hard to prove)
o 4. Loss or injury forseeable
o Civil law standards lower than Criminal law
Doctrine of double effect: if intention is to relieve suffering and incidental consequence is that it may
hasten death (Palliative Care Amendment of the Criminal Code) A person is not criminally
responsible for providing palliative care to another person if (a) the person provides the palliative
care in good faith and with reasonable care and skill; and (b)the provision of the palliative care is
reasonable, having regard to the other person's state at the time; and (c) the person is a doctor
o Lack of criminal intent

Death not caused by doctor (causation)
Over-sedation in patients best interests
Primary intent is to relieve
Principles:
1. Action itself is ethically good, or at least ethically neutral
2. The harmful effects are not deliberate
3. The benefical effects arise from the action itself and not the harmful effects
4. There is a sufficient margin of good over harmful effects of the action
Uses modified Bolam principle
Common law doesnt really provide procedures for doctors to follow though well covered if you:
o Seek another opinion (ask a pain specialist)
o Document your decisions in pts chart and justify them
o Law mainly related to pts in the terminal phase of terminal illness less justified to give
potentially life-shortening drugs if pts suffering is transient
o Foresight of the probability of death or serious bodily injury may be sufficient mens rea for
murder
When pts reject pain relief:
o Fear of dependence, addiction, legal liability (eg. driving)
o Fear of stigma (eg. drug-seeking behaviour)
o May impede their level of consciousness (personal choices)
o Right to refuse protected under Common law utmost imp given to autonomy
Case study: 15yo had stroke, glioblastoma (terminal illness) parents wanted sedation reduced so
they could say goodbye (so teen would be aware) though fear that teen would have insatiable
pain upon awakening difficult ethics case but in end teens sedation was reduced so she had a
couple of hours to say goodbye to her parents before she died
o
o
o
o
The Socio-Cultural Phenomenon of Complementary Medicine
High rate use of complementary medicine 1 in 6 people go to CAM first

Some CAM (eg. traditional Chinese acupuncture) are within the National Registration and
Accreditation Scheme but a number are not (eg. naturopathy) extraordinary variability in
minimum education standards, regulation and safety in non-registered alternative medical
professions
Safety issue practitioners of varying qualification, not much regulation missed opportunity for
good and proper care and may be saying dangerous things (eg. vaccinations dont work)
CAM constitutes nearly half of the Australian health sector so unknown the Black Market of
Health Care, higher use in rural areas
CAM definition: cultural and historical context, often defined by exclusion (eg. what is not taught in
medical schools, fraught with difficulties)
o Also difficult to list by inclusion as lots of differing types of therapies eg. vitamins,
Scientology, hypnotherapy, herbalism
o Socially constructed: changes over time and cultures, not set in stone
Medical acupuncture often accepted in Australian GP practice
Yoga views from esoteric now transitioned over time to be a part of GP
o No way to define yet that gives a useful definition
GPs knowledge of CAM influences how confident and comfortable they are with it and willingness
to use it acupuncture, yoga and massage are ones GPs are most likely to refer to and ones they
feel most knowledgeable about
GPs professional relationships with CAM practitioners more likely to trust that particular
practitioner: mostly chiropractic, acupuncture, massage
Common thread: vitalism, holism, individualised tx very tailored to the ind pt, not just blanket
standard tx for h/ache, pt involvement, treating the person, not the disease
Levels of CAM use range from ~25-80% in general populations, more likely female, mid-age, higher
income, rural, most often used alongside conventional care
o 48.5% population saw CAM practitioner in past 12 months (80% saw GPs)
o Most users believe CAM is already strongly regulated
o CAM use has been going up (gov researching to see efficacy to see if its worth it)
o Women with private health insurance more use to use obstetrician AND consult with
chiropractor (potentially consulting with 2 opposing professions and self-integrating it
independently)
Your patients will be: more likely than not using CAM product/seeing CAM practitioner/ NOT
discussing CAM use with conventional providers CAM asks more about pt, has more knowledge of
pts case
o Social Science theory:
Feminist form of medicine: empowerment of pt, social and enviornmental issues
incorporated, tailored txs, pts subject experience central to case-taking
Postmodern thesis: rise of individualism, all about ME, CAM practice is all individual
so they feel listened to, and that their personal story is more meaningful, growth in
the smart consumer
Why people use CAM: conventional medicine ineffective for some conditions (eg. back pain for
pregnant women), fear of s/efx of conventional medicine, seeking different practitioner relationship
(pt more involved) very diff underlying drivers to use for diff CAM practitioner types
(acupuncturist vs chiropractor vs naturopath)
GP view of CAM: doctors generally accepting of patients use even if dont believe in it theyve
got 30% chance of getting better just by seeing someone, as long as theres no harm
o Major concerns:
Lack of regulation
Financial exploitation
Issues:
o Potential victim-blaming: youre not getting better because youre not doing it right
unreasonable expectations, puts a lot of responsibility on the pt
o Can be dogmatic, non-integrative: may not be aware of limitations of their therapies, eg.
opposing vaccination and cancer tx based on purely philosophical reasons and not any
logical or rational decision-making
o Not always holistic: can push for their products
o False legitimacy: eg. 18yo with a week in vitamin consultant learning, people think its
legitimate but no accountability
Complementary and Alternative Medicine (CAM)
Chiropractor quote: Elements had brought the profession to a crossroads, where it had to choose
bw science and pseudoscientific dogma
o The push by some for chiropractice to become a unique and all-encompassing alternative
system of healthcare is both misguided and irrational
MBA v OSullivan: Naturopath had breast cancer Dr Sullivan was found to have failed to
appropriately examin and investigate womans condition, failed to advise of conventional tx options
and risks let naturopath use her Medicare account to order medical supplies for naturopaths
own pts blurred distinction between pt and naturopath
o Penalty: suspended after 3 months, ethical decision-making training program, provision of
records, notify employers, suspension and conditions appear on register for 18 months, pay
Medical Boards costs
Cases: Doctors deregistered for referring patients to therapists who use divining rod, use magnetic
field therapy, use homeopathy, not diagnosing bowel cancer, referring to chiropractor who
manipulated neck needed neurosurgery and found negligent b/c he FAILED to examine the pt
properly, then executed a negligent referral to the chiropractor
o Standard for doctors does NOT change b/c CAM used
o Incl referrals to CAM practitioners
o Regulation based on essentially science-based standards
o Civil Liability Act 2003 QLD Bolam principle unless Court considers opinion is irrational or
contrary to a written law
Proactive duty reasonable person
Reactive duty particular person
Standard of care (Doctors): Disclosure
o Rogers v Whittaker advise of available alternatives
o Sometimes legal responsibility to discuss CAM with your pts particularly when more likely to
use CAM (high level of use by public, difficult to demarcate CAM and conventional medicine)
When materially relevant
Discuss CAMs that are reasonably available
Especially when: no proven conventional med tx or has invasive or high risk or of
little benefit, pt interested in CAM
o Standard of care for doctors, for diagnosis and tx, remains same for CAM modalities
standard essentially science-based
Standard of care (CAM practitioners):
o English case: standard is not the same as the standard of doctors BUT CAM practitioners
cannot ignore relevant scientific evidence of risk and rely only on tradition (must be aware
of scientific evidence of sig harms)
o NSW only jurisdiction that have limitations on unregistered practitioners (outside of 14
health professions registered under National Health Scheme National Registration and
Accreditation Scheme)
o QLD: only prohibited from holding out saying I am a doctor
CAM and orthodox medicine (OM): CANNOT be distinguished clearly according to:
o Being taught in medical school or not
o Being used in OM practice or not

Being regulated or not
Being tested or not
BUT any claim to be therapeutic or to provide benefit is a causal claim these require
testing CAM cannot be exempted from testing on basis that it is different, IF it makes
therapeutic claims
Calls for increased regulation of CAM outside and within profession and for their products
o Calls for removal of CAM courses from universities and TAFEs part of those modalities
arent scientifically based, though not all medical claims are strongly scientifically based
either
Integrity and integration problem for CAM
o The more scientific complementary medicine becomes, the less identity and claim-to-be-
different persuasion they have dilemma, makes it harder to distinguish bw
conventional/orthodox medicine and CAM in future
o Incommensurability problem:not able to be judged by the same standards; having no
common standard of measurement
o Integration model is incoherent: marrying science and non-science, and integrating
incommensurable paradigms is potentially dangerous
o Pluralistic model: if you are a GP and trying to incorporate CAM modalities, better make sure
you state the evidence to the pt, avoid harm and your referrals activity should be limited by
avoiding harm
EBM and CAM criticism of our authoritiative paradigm to clinical practice is we dont consider:
o Clinical experiences
o Patients reality, preferences into account enough
o Dont give pts enough time, dont explore meanings they bring to the consultation
o Social, emotional or spiritual elements
Gov now investing in Natural Therapies Review Advisory Committee making sure there is
evidence into the things taxpayers fork out for
Regulation of unregistered practitioners:
o NSW: focuses more on professional conduct than clinical standards (eg. sexual impropriety,
intoxication, impairment) Health Care Complaints Commission can prevent practice or
impose conditions
o National Registration and Accreditation Scheme: Limited to practices that presents serious
risk to health and safety which could be minimised by regulation, registration has beneficial
impact on tightening standards and dealing with complaints
AMA position statement: emphasis on importance of evidence
MBA: Yet to develop guidelines
OM and CAM cannot be sharply distinguished, except at extremes
o
o
o
Finding Evidence Based Answers to Questions about Complementary Medicines
Every product that comes into Australia claiming to have some kind of therapeutic effect must be
registered through the Australian Register of Therapeutic Goods (ARTG)
In Australia, poor available of information resources, difficult to find evidence-based information
information about CAMs are or variable quality (sometimes inaccurate potentially harmful)

Western medicine: single ingredient so usually more targeted and specific to individual
illnesses
Questions to ask about a CAM
o 1. What is in the preparation?
o 2. Is it regulated?
Therapeutic Goods Administration (TGA) and ARTG
Listed (AUST L): claims limited to assist rather than treat, need to submit
quality and safety BUT not efficacy (most CAMs generally under here)
Registered (AUST R): need to submit quality, safety and efficacy efficacy
claims generally more substantial
o 3. Does it work?
EBM or accumulated empirical evidence (eg. done for digoxin) while we should
look for high level evidence, such data not always available , covered inconsistently
by CAM resources
o 4. How much should be taken?
Covered inconsistently by CAM resources
o 5. Is it safe?
5 harms of harmless therapies: adverse drug rxns, drug interactions, expense,
missed opportunity, loss of hope
o
The Dead, the Near-Dead and the Unconscious: Ethical and Legal Issues in
Teaching Medical Students
Modern death rites: life insurances, wills, autopsies, disposal (cremation, burials, donation)
Sanctity of life: when does life cease (eg. inds in permanent vegetative state, inds with advanced
dementia, very close to death)? Do we valorise life at the beginning and less so at the end?
o Wesley Smith: sanctity of life position never say life unworthy of life, should always be
promoting our life, never kill a baby
o Singer: quality of life position utilitarian, features that make life not worth living, so can
practise on nearly dead as have no features that are going to lead to their quality of life
Intuitions: should not train on dying pts, should not interfere with a dead body, should not practise
medical procedures on a dead body most people believe we own our body even when we die
Is there a symmetry with the moral status of embryo argument due to potential of embryo to
have a life, whereas is there potentiality of the dead? recognising the potentiality of the dead
triggers the need for respect (transplant, research, teaching, posthumous conception)
Moral obligations to the dead?
o A: no, we cannot have obligations as we cannot affect their experiences can do no harm
to them
o B: yes, unlike unborn they have identities and likely to have died with relationships
society respects their wishes of dead through wills, funerals, potentiality argument
UK example: report publised thousands of brains removed during postmortem exams without family
consent and kept for mental health research England to release new human tissue bill
o Community concern and families very upset
o Can dead research subjects have posthumous interests? Yes there is often symmetry bw
interests of living and dead people protect interests of the dead
Interests that survive death:
o Experiential interests DO NOT survive death as dead people cannot experience anything (eg.
pain, capacity to act)
o Privacy, reputation, bodily integrity, not having ones remains desecrated
o Religious freedom and disposal Jehovahs Witnesses, Orthodox Jews, Maori, Chinese
great value burial intact
Acting with ethical integrity:
o If asked to participate in research using deceased organs check research ethics approval
document
o If using deceased records formal permission required under Public Service Act
o Where possible, seek permission from family
DRE on anaesthetised pt: Was consent obtained? Was it informed? What exactly were they agreeing
to?
Minimally invasive procedures: dont need formal written consent, implicit consent
o Eg. Cannulation, suturing
o Surprising also include: intercostal drain placement, liver biopsy ??
Majorly invasive procedures: intubation, crico-thyrotomy, emergency thoracotomy
Modern teaching: telemedicine, cadavers, multi-media suite, simulation labs BUT difficult to
reproduce the physical realities and emotion components of stress, fear and failure in the clinical
encounter
Ghost procedures: pts undergoing procedure under anaesthetic may not be informed that part or
whole of the procedure may be undertaken by someone else, and we dont generally ask this kind of
consent, Sarah Winch thinks we should (most common endotracheal intubation)
Tug of war: poor technique from poor training/poorly trained workforce vs harm from having
autonomy infringed
o Need to minimise pt harm, maintain public trust and respect persons
o Utilitarian view: pts obliged to participate since harms they experience are outweight by
benefits to future recipients incompatible with autonomy

Kants categorical imperative provides counter position: humans should never be seens as a
means to an end they are an end in itself, so using a pt as a teaching aid is unacceptable
What if pts had said no to laryngeal mask which has revolutionised anaesthesia? Some argue for
innovation to occur, you have to go out and innovate
o

Little indication he got ethics approval for pig use or consent from pt but Sarah says benefits
have definitely outweighed the harms
Doctors primary duty: take care of pt to do that, need to gain motor skills
Using pts in training:
o 1. No direct benefit for that pt contributing to greater good
o 2. Not constrained by consent often not asked, esp in teaching hospitals
o 3. Often occur surreptitiously
When does arrest pt become dead? When lead physician acceps condition irreversible, calls a halt
and pronounces dead procedures are this are training only (noted this opportunity has been
exploited)
Advantages of the nearly dead: hard to replicate tensions and worrying thats going on during a
resuscitation, if we collapse we want to know that theres an efx resuscitation when someone is
doing CRP, best time to try getting as many people to be able to do successful endotracheal
intubation, placement of central venous catheters whilst not compromising health of pt but if you
have pt not going well, there is temptation to do it then
Beneficence: medical education is primarily directed at providing benefits to society as a whole, may
also benefit participating pts
Professional obligation: trust pt needs to rely on clinician as skilled professional, not act beyond
your capabilities to maintain trust
Should we ask the patient?
o A: no, pt not at risk, general consent for procedure given, no need for specifics BUT
infringes pt autonomy, compromises moral integrity of trainee?
o B: yes, studies have shown pt satisfaction does not decrease when students participate in
their medical care willingly allow indicating may believe benefit to themselves and society
outweigh risks (altruism)
2/3 pts agree to being a teaching prop for endotracheal intubation
Future: need to ensure meaningful consent from pts to participation in medical education
o Pts fully informed of the training status and experience of all staff caring for them
o Comprehend risks, benefits and alternatives
o Blanket consent at admission insufficient
o
o

Educators should identify ways to minimise risk of participation by inexperienced providers
increased reliance on advanced tech simulations
Procedural basics: 1. Identify who you are, 2. Consent required, 3. Recognise your limitations
o
Brain and Mind
Aristotle: when the heart stops, everything stops, so the heart must be the seat of mind and action
Plato: sphere is most perfect form, head is spherical so brain must be the seat of mind and action
Mind-Body problem: on one hand, relations that hold bw your brain and bag of bones which is your
body and on the other hand, whatever is involved with activities of thinking, feeling, character which
makes us special as a being with a mind, comes with assumptions:
o 1. Minds are things but what sort of thing?
o 2. Each person has one, and only one mind, and a mind which nobody else has (exceptions
with multiple personality disorders, dementia)
o 3. Spatio-temporal world, incl our bodies (incl brain), is a reality independent of us and our
knowledge solid bits of the world (body and brain) but if I died, my mind would be gone
(though body doesnt disappear)
Significance of mind-body problem:
o Free will: the mind is somewhere there, next to or embedded into, the brain, which is just a
physical structure presumably governed by physical laws (biochemical, etc)
o Natural or supernatural: different and distinct from the physical world we can grab onto
o Life and death: abortion, euthanasia (we only allow if someone is categorically diff from us
believe they dont have a mind any longer)
o Animals: many animals have similar brains, likely to have similar minds (?) deserve some
degree of respect use of animals in medical research
o Mental illness (disorders of the mind) and psychiatry
Dilemma of the mind-body problem:
o 1. The body (incl brain) is a material thing an extended thing that is measurable and
occupies physical space
Only physical events governed by physical laws can occur within the brain
biochemical/biophysiological processes
o 2. The mind is a spiritual thing not necessarily religious, but diff from that physical idea
not physically extended but temporally extended
Only humans have mind (diff from everything else, which is material) plausible
that the mind is immaterial
Things like ethics, consciousness, intentionality (eg. value not known by sense)
the mind is an immaterial thing capable of mental life
o 3. Mind and body interact lift an arm
o 4. Spirit and matter do not interact (opposite contradictory to 3., we intuitively think that
as how on Earth can something that is categorically different from physical stuff, have any
effect on physical stuff, and vice versa)
How would physical processes causally affect a spiritual entity?
Physiology suggests the brain obeys physical laws so such interaction is odd
o Not coherent : 1-4 are true, all 4 cannot be true somethings gotta go
o Which one should be rejected?
Solutions to the mind-body problem:

o
1. Dualism: say that the body and the mind are two completely distinct entities
Growth, evolution of an embryo suggests either no living thing has a spirit, or all
living things do (panpsychism which is implausible) so how does the mind
suddenly arise in an embryo?
Interactionist dualism (Descartes): Body is material, mind is completely diff, but they
interact trying to account for our diff intuitions
He thought mind is so diff, they could exist independently (also what
religious people believe Dualist approach to life and afterlife)
Dualists believe in afterlife
Thinking essential to being human I think therefore I am
Saw brain/body as machine so left that one for doctors to fix
Challenge for him how they interact? Suggested pineal gland as point of
contact bw mind and body same prob remains as pineal gland is just part
of the body X
Cartesian dualism allowed for separation of mind and body Church can
still look after spirit, mind and medicine can look after body, machine
Parallel dualism:
1. Causal interaction is an illusion and apparent synchronisation is
arranged by God
2. Causal interaction is not an illusion but results from Gods causative ability
3. Epiphenomenalism: The body does things that affect the mind but the
mind is causally ineffective in controlling the body counterintuitive as
mental events definitely do cause bodily actions (v outdated line of thought)
Prob: unduly contrived
2. Behaviourism: the body is a material thing only with no ghost in the machine directing
operations the mind is just our behaviour, not something behind our behaviour (v
deterministic, naturalistic, scientific explanation)
Say statements about mental events describe dispositions to behave in particular
ways the behaviour IS the mental state
BUT
1. Mental events seem to be causes of behaviour
2. Behaviour descriptions leave out experience (qualia sensation of pain)
3. Pain experience occurs without pain behaviour so this theory is
inadequate
3. Materialism: behaviour is not mind but is caused by the mind mind IS
brain/CNS/matter
Mind = brain (and only properties which the brain has are physical properties)
Say mental events (eg. beliefs) ARE physical events nothing more than the
physical discharges going on in my brain
BUT what does that do for our idea of free will? If everything is just scientifically
explainable and determined? Are choices determined rather than truly free?
Same prob as behaviourism as leaves out experience (eg. painfulness of pain
which is real, but not completely explained by neurophysiology)

Type-type identity theory: if mental states are identical to physical states of the
brain, then only human brains can have mental life
Functionalism: artificial intelligence mental life could then be supported by other
structures does the supercomputer then have a mind and become a person?
4. Double aspect theory: mental states (eg. intentions, beliefs) have two sorts of properties
material and non-material (property dualism not caused by material changes in the
brain, another aspect of them)

BUT when do these non-material properties make their appearance?
Possible answer Emergence: when you have a complex system, you can get qualities or
properties that emerge which cannot be explained or reduced to the elements that make up
that system properties of thought so diff/unique as cannot be explained by simply looking
at physical properties
Qualia: phenomenal awareness (eg. painfulness, colour) are new properties which
emerge in certain complex systems and cannot be explained (eg. by neurophys)

Science cannot explain your experience of colour Mysterions believe we will
never be able to fully explain thoughts
BUT is emergence an explanation or just restatement of previous theories?
emergence of mind implies some kind of irreducible duality (as it arises)
Consciousness means something diff from physical structure and mental statements are irreducibly
distinct from brain states SO intimate relationship bw mind and brain but science has probs
explaining things like subjectivity
Legacies of Cartesianism (Descartes): separation of mind and body
o Brain/body as a machine modern medical science (now we have incredible power to heal,
ameliorate Sx BUT now too interested in all scientific stuff and not enough in
biopsychosociocultural elements)
o Mind/soul as province of the church sanctity of life in medicine
o In Psychiatry: psychoanalysis (Freud) presented as science, but scorned as part of medical
science, biological bias against the mind criticised as doesnt take into account of whats
going on in the mind and in terms of pt experience
Critical responses to biological psychiatry: reverse biologicalisation of psychiatry
Psychiatry and dual aspect theory: Head injury brain changes to how your mind works
o Mental experience (eg. bereavement, childhood abuse) physically changes the brain
because they are meaningful reflects how closely brain and mind are related

Inadequate physiological explanation can premature closure or inappropriate tx
Mentalistic aetiologies provide more understanding need psychoydnamic, humanistic
therapies going on concurrently to pharmacotherapy
We undertreat pain as we dont tx it so much as our pts experience but merely physical

o
o
Psychiatric Diagnosis: Nature and Ethics
Recap:

Illness: how a disease affects the body and mind more holistic than merely disease
Attempting to be more objective (EBM) eg. depression scales though not the same as physiological
measurements
Probs with having a definition of mental disorder: implications for scope of medicine
Ulcerative colitis diagnosis implications: medical tx and surveillance, dietary modifications, surgery,
workplace decisions whenever diagnosis made always have sig implications
Psychiatric diagnosis implications:
o Stereotyped/labelled/defined
o As condition of mind you are responsible for it, often told to fix yourself up and
blamed as if responsible for the condition or for not improving
o Seen as abnormal/different/lesser value
o Freedom restricted, permanently labelled for insurance purposes
o Used positively: modern management
o Used negatively: to justify political action (eg. incarceration)

Disease is the primary concept medical model of disease appears to be value-free, due to strong
consensus and based on pure pathophysiology
Psychiatric problem approaches:
o Szasz Myth of Mental Illness: so called mental illnesses are just problems of living
o Fulford physical and mental illnesses much more similar than we might think both have
scientific aspects and evaluative aspects (experience of illness), just in organic area we focus
on the scientific aspect eg. person with ulcerative colitis and with schizophrenia wont be
able to do things they normally do both kinds of illnesses are failure of action of ordinary
doing in absence of obstruction
Psychiatric diagnosis: serious medical-moral responsibility so balance caution in diagnosis with
need for diagnosis to rationally manage the pt
o Some psychiatric modalities consider diagnosis unnecessary or bad
o Need to remember in this area, pt is the expert on their own experience
Psychiatry and EBM (scientific, non-variable):

o Psychiatric probs: subjective experience and meanings, highly variable, categorisation v
difficult psychiatry attempts to be scientific ensuring status in medicine biological
psychiatry
o Led to rapid expansion in drug tx and brain imaging BUT challenges unique pt experience,
differential weightings of Sx, heterogeneity of Sx and signs, difficulty standardising tx
modalities, vagueness in delineating tx outcomes
Psychiatric classification systems:
o First modern clinical classification system (Kraepelin 19th C): according to common patterns
of Sx, course and outcomes, moral insanity = psychopathy
o Freud: developed psychoanalysis (talking therapy), tried to make psychiatry scientific,
psychodynamic psychotherapies (eg. what happened in your childhood affects you now
underlying unconscious processes), didnt really develop classification system
o DSM-I: 1952, DSM-V: 2013 trying to be as value-free as possible but everyone agrees
there are a lot of evaluative content in diagnostic categories (culture, purposes, biases and
social norms help comprise diagnostic categories)
Eg. Anti-social personality disorder: failure to conform to social norms social and
moral loading in the diagnostic description
Scope of psychiatric illness: eg. homosexuality
Criticisms:
Disease-mongering (eg. Pharma)
Pre-clinical syndrome conditions
Over-diagnosis of depression
Medicalisation of social categories (quasi-Szasz who believed mental
illnesses are just really problems of living)
Self-help movt
Health as a consumer item
Happiness culture
Commercialisation of medical practice
Features of a comprehensive classification system:
o Accurately describes problems of serious nature that cause distress, morbidity, mortality,
danger to others (want to help these people)
o Recognise fluidity/dynamicity inherent to psychiatric illness implications of the evaluative
elements of the system
o Remain mindful of tendency for the scope of psychiatric illness to progressively change in
response to social consensus
o Pluralistic incl features of any theory/therapy which appears to have beneficial results while
also reflecting continual attempts to validate diff theories in terms of what works in practice
Distinction unclear bw biological txs (eg. drugs) and psychological txs (eg. psychotherapy)
each type has effects on brain and also the mind, but structure of the brain and the mind are not
two completely discrete entities
o Avoid privileged focus on physical modalities
Student Registration and Impairment
Health Practitioner Regulation National Law Act 2009 QLD: incl voluntary and mandatory reporting
(new and controversial legal obligation) for doctors and medical students
o Legal obligations are external regulations that weaken self-regulation (internal regulation) of
professions reduce indept and status of the profession
o Intoxication, sexual misconduct, risk of substantial harm due to impairment, risk of harm
with sig departure from professional standards
Self-regulation: paradoxical duality of altruism nature of profession and self-interest, self-regulation
function
o So self regulation is inevitable, necessary and valuable
o BUT also amount of self-regulation is subject to communitys discretion via gov processes
(dept on how adequate internal regulation is)
Internal regulation: AMA Code of Ethics, Good Medical Practice of old Medical Board of QLD say
you should report unethical or unprofessional colleagues once reach a threshold then you are
LEGALLY OBLIGATED to report it
Engines of need for external regulation (eg. Health Quality Complaints Commission): serious ind
breaches of professionalism attract most public attention, but problems occur at 2 levels:
o 1. Ind practitioner (often arrogant and narcissistic)
o 2. Profession (still immersed in a culture of silence)
Medical profession has tended to resist increasing external regulation as this is an imposition on the
professions ability to self-regulate
o Claim: Doctors sufficiently governed by ethical and professional obligations to self-report
and report others
Rebuttal: Why we need external regulation, given no evidence of adequacy of that
reporting and anecdotal evidence that doctors often dont report
o Claim: Legislation will cause practitioners to hide their impairments and issues driving
probs underground doctors wont get txed for their probs (scared to show they are
impaired)
Rebuttal: Should be self-reported anyway, best way to hide a professional
standard issues is to improve the standard
o Claim: Forced reporting would deter doctors from seeking help WA has legislated to
exclude txing doctors from reporting impairments
Rebuttal: Only sig impairments that pose a considerable risk to the public need be
reported If they dont have insight to self-report, then should be reported
Gov commissioned a no of reports to assess self-regulation found ~60% medical board files were
not handled in manner that was timely or appropriate something amiss in QLD medical regulation
made Health Ombudsman Bill 2013 (replaces HQCC, greater powers) and sacked Medical Board of
QLD
o Medical Board will still exist but with lesser powers and only get cases that are minor and
less serious co-regulatory jurisdiction in QLD
National Health Program for impaired doctors: recent decision of MBA
o Advantages: confidentiality makes presentation more likely, less stigma/career probs
amongst colleagues, doctors more susceptible to some conditions (eg. mental/suicide)
o Probs: Equity, nothing wrong with status quo
Students: subject to university conduct rules and also provisional members of progession, students
can cause harm to patients during training and some evidence that student professional issues
predice later probs
o Medical Boards and AHPRA dont really care unless student has offence punishable by 12
months imprisonment or more, or conviction of, where finding of a guilt is punishable by
imprisonment
o 1 mandatory notification to MBA: Impairment that affects students capacity to undertake
clinical training and where impairment may pose substantial risk of harm to public
o Voluntary notifications: offence punishable by 12 months imprisonment or more, may have
impairments (can be self-notified, even if no risk to public), contravened condition of
students registration
o Inherent requirements: are there conditions by which a university could say to a
prospective medical student, you cant come into this program? (eg. borderline personality
disorder)
Doctors Health
Doctors have same sorts of problems as everybody else same rates of preventive health checks,
immunisation suboptimal, smoke less so lower mortality than general pop
>40% have long term health probs
Higher incidence of suicide peers fail to recognise risk, family friends have no clue how to help,
substance abuse, dislocation (they start engaging with peer things), stress
o Most severe stressors: threat of litigation, paperwork, intrusion of work on family, time
pressure to see pts, etc
Low rates of health access: 57% doctors did not have a GP, 5% their own GP
Doctors Health Pathway: often miss out on a lot of normal advice (eg. physio assumes you know), go
straight to specialist (miss general management)
o

Duty to notify colleagues:
o Document
o Consult confidentially: Superiors, Medical Defence Organisation, Medical Board
Looking After Yourself Doctors Health
Deontology: duty but what about your duty to yourself
How we get our values: primary socialisation (family and school), secondary socialisation (here),
modelling, clarifying through experience (what is tolerable to you?)
o 3 components: emotional, cognitive and behavioural
Job hazard: Compassion Fatigue (CF) If our values are challenged we can have some emotional
stress (pretty much just running out of compassion eg. 2 nurses to 100 pts became bitter)
o Our ethics and values are challenged regularly in health care
o Characterised by physical and psych exhaustion resulting from excessive professional
demands
o The natural, consequent behaviours and emotions resulting from knowledge about a
traumatising event experienced by a sig other. It is the stress resulting from helping or
wanting to help a traumatised or suffering person
Compassion Satisfaction (CS): when ind believes they have contributed positively to the world
feelings of happiness and success. This is a protective measure that minimises the potential to
develop compassion fatigue

Burn out: state of physical, mental and emotional exhaustion caused by long term
involvement in demanding circumstances, is a process not a condition, origins are usually
organisation and Sx directly related to cause (NOT the same as CF)
o CF is not counter-transference: cummulative process that is felt beyond any particular
relationship, temporary, limited to certain relationships, process of seeing oneself in the pt
Who is at risk of CF? Health care staff working in highly stressful or trauma intensive
environments are most likely to experience episodes of not coping or of being overwhelmed
Symptoms and efx of CF:
o Individuals: affected emotionally, cognitively, behaviourally and physically feeling cynical,
angry, guilty, apathetic, disillusioned may get intrusive imagery or thoughts about victims,
decreased levels of job satisfaction, feelings of failure
o Workplace: increased absenteeism, decreased compliance with requirements, alcohol or
drug use, impaired decision-making, decreased level of concern for clients
Mother Teresa: wrote in her plan for mandatory one-year leave for nurses every 4-5 years to allow
them to heal from the efx of their care-giving work
Promoting CS over CF: caring for yourself to maintain compassion resilience
o A Awareness: know your needs, limits, emotions which cases increase your vulnerability
to compassion fatigue
o

o
B Balance: identify one non-negotiable pleasant activity (eg. see a movie every Sunday
night), when time gets tight identify an endpoint and escape plan (eg. during SWOTVAC you
do need a break)
C Care: physical, get medical tx, get professional help, exercise, sleep, find quiet alone
time, know what helps to restore you, limit what drains you where possible, find ways to
acknowledge loss and grief, developo a plan to take care of yourself, find a peer coach
Involuntary Treatment: Ethics and Law

Orange from Year 1
Influencing people: suggest, persuade, authorise (autonomy), coerce (threat), compel (force),
dominate (force)
Does persuasion = paternalism?
Case example young woman with eating disorder disturbances of control/self-rule/self
disturbances of autonomy/the self
o Autonomy: self-determination, self-rule, self-control anorexia is an example of excess
control
o Best interest for pt is objective justified intervention as has lost autonomy
Competent people can refuse tx dieting alone not always sign of incompetence or manifestation
of excess control does not always constitute a mental illness
Mental illness: Mental Health Act 1974 (no definition, common sense understanding) Mental
Health Act 2000 QLD A condition characterised by clinically sig disturbance of thought, mood,
perception or memory
o NO definition for: bizarre behaviour which may result in detention (rights to liberty
infringed)
o Disagreement over what should be classed as mental illness and who can be detained
o Exclusions from definition of mental illness:
Intellectual disability, drug or alcohol use alone
Expression of particular religious, political, moral opinions
Race, sexual preferences
Antisocial or illegal behaviour
o Rehash grounds for involuntary admission (need all of):
1. Person suffering from mental illness
2. Illness requires immediate tx
3. Tx available at authorised mental health service
4. Illness may give rise to imminent risk of harm to self or others OR illness may
cause person to suffer serious mental or physical deterioration
5. No less restrictive way to tx
6. Person lacks capacity to consent OR has unreasonably refused tx
o

Brief history: MadHouses Act 1744 UK County Asylums Act 1808 (no access to courts for pts,
insufficient asylums: many people in jail) Lunacy Act 1890
o Australia Lunacy Acts: for safe custody of mentally ill, prevention of crimes, care of persons
of unsound mind
o From 1930s onwards: increased attempts to define and limit coercion
o UN Principles for the Treatment of Persons with Mental Illness (1991)
o State and Territory Legislation Mental Health Act 2000 QLD try and restrict infringing
persons liberty wherever possible
Ethical and legal issues:
o 1. Deprivation of liberty: no restriction to persons right to liberty except where infringes on
rights to others or rights to themselves
Rights to liberty vs rights to tx
If providers fail to involuntarily detain pts who have harmed others or committed
suicide NEGLIGENCE CASE
o 2. Community tx:
ITO: involuntary tx order
CTO: community tx order (deinstitutionalisation moved back to community areas)
Controversial whether has clinical efficacy, inadequately resourced,
privacy/confidentiality issues
o 3. Seclusion and Restraint
o 4. ECT: Consent of pt OR consent of Mental Health Tribunal OR to prevent irreparable harm
o 5. Psychosurgery: Informed consent AND Mental Health Tribunal
Involuntary Assessment Treatment: A Clinical and Ethical Perspective
UN Convention on the Rights of Persons with Disabilities: Australia has ratified this just about
respecting ind autonomy and freedom to make ones own choices
Mental Health Act QLD 2000 Need to consider Recovery movement (that inds with mental illness
take control over decision-making processes and autonomy) , Human Rights Frameworks
o Involuntary assessment: up to 3 days for assessment
o Involuntary tx: inpt or in community
Requires comprehensive assessment: spectrum of mental health problems vs mental illness
Imminent risk: what factors suggest imminent risk:
o Static (historical fixed as it is in the past, eg. pt has acted violently in the past, helps
determine current likelihood)
Likelihood = Static

Dynamic (current, eg. is he actively drinking alcohol or psychotic in this last week)
Dynamic = Imminence
o Protective factors
o Magnitude
o What has changed? Will you discharge pt? eg. Still has a fridge full of beer cans, etc
Mental illness and violence: there is an association BUT:
o Most mentally ill are not violent
o Mentally ill have more risk of being victims of violence rather than perpetrators of violence
o Most violent: young men with mental illness and with active Sx
Risk in Context:
o Risk to self: self-harm, suicide, self-neglect, non-adherence
o Risk to others: violence, public nuisance and harassment, reckless behaviour, specific issues
(eg. stalking, arson)
o Risk from others: physical, sexual or emotional harm, financial or social abuse or neglect,
stigma and discrimination
Pt welfare (Health and Civil Liberties) vs public welfare (Justice and Community Safety)
o V imp to use objective structured way of thinking about risk not just clinical vibe as this is
informed by things about us, not just use actuarial tools (based on population data) now
combine these things so you have a structured approach to clinical judgment (next years
topic)
Capacity: Understands nature and effect of decision, freely and voluntary making a decision,
communication decision in some way understand, appreciate, reason, communicate
You must consider the risks not only of the thing you are worried about, but also the risk in the
decisions you take to prevent it (risks in involuntarily admitting a pt) ITO MUST be accompanied
by tx plan that is developed/discussed with patient monitor and evaluate throughout
o
MBBS II, Semester 2

Public Health Ethics
Concerned with the health of the entire population, rather than the health of individuals ind
rights have less importance and autonomy not as big (may be restrictive to inds in name of health of
the public)
Recognises the multidimensional nature of the determinants of health not as interested in the ind
focuses on complex interactions of biological, behavioural, social and environmental factors in
developing effective interventions
Different meanings of public
o 1. Numerical public: utilitarian view that focuses on justice
Eg. How should we compare gains in life expectancy with gains in health-related
quality of life?
How should we define a population?
o 2. Political public: government has collective responsibility and is compelled by its role as
the elected representative of the community to act affirmatively to promote the health of
the people though it cannot unduly invade individuals rights in the name of the communal
good
Justification and limits of governmental coercion?
What about its duty to treat all citizens equally in exercising these powers?
Coercive policies must be justified by moral reasons that the public in whose name
the policies are carried out could reasonably be expected to accept
o 3. Communal public: includes all forms of social and community action affecting public
health eg. NGOs, as they are outside of the gov and have private funds, they often have
greater freedom to undertake public health interventions as they do not have to justify their
actions to the political public
Their actions are still subject to various moral requirements, however, eg. privacy
and transparency in disclosure of conflicts of interest
Eg. In some countries pharma going into populations testing drugs without ind
permission, only with gov permission these goves have an interest in this as it will
save more people in the future (utilitarian/ public health ethics model)
Shift in focus: from individual public/ population level health
o From treatment prevention
o Though preventive interventions can be pervasive as health risks are everywhere at what
point do we allow people to make their own mistakes and not protect them from harm or
allow development of a nanny state?
o Target group may be health persons without complaints concern with overdiagnosis
including incidentalomas
o Target groups need to be persuaded into doing the right thing sometimes pressed, if not
forced make sure people are going to benefit if we are going to undertake some fairly
coercive things
o
Growth in public health: civic authorities were active in isolating sufferers with greater preventive
effectiveness whilst doctors were appearing impotent focusing on inds and their authority was
threatened forced to adopt duty to wider society
o Universal Declaration of Human Rights: health care as a universal right governmental
responsibility wide acceptance of Health for all
o Modern attention on:
Global health focus on developing countries
Further infectious disease control bioterrorism, SARS, pandemic preparedness
Health promotion smoking, alcohol, nutrition
Screening programs: cancer
Justice and equity in health
Analysis/ review of public health: influencing adults to change their behaviour is both an ethical and
a political issue
o Utilitarianism and Communitarianism are relevant philosophical principles
o It is possible for public health to be compatible with liberal pluralism
Global to local: ethics and law and their obligation to protect the health of the population
o Global statements of Human Rights
o National ratify UN Declarations
o National and State powers to legislate, tax, spend, punish eg. restriction of personal and
business liberties such as seat belt laws and designated smoking areas
o Court public scrutiny and accountability
Ethical aims and considerations:

Teleological (end-oriented) such that the health of the public is the primary end as well as
the primary outcome in measuring success (while ind wellbeing is not significant until
collected as a whole)
o Distributive justice: distribution of benefits and burdens fairly
o Procedural justice: ensuring public participation including that of affected parties
o Balancing personal and community responsibilities for personal and community good
o Respecting autonomous choice as well as privacy and confidentiality
o Transparency: disclosure of information
Public health should provide communities with the information they have that is
needed for decisions on policy or programmes, and should contain the communitys
consent for their implementation
Resolving ethical conflicts:
o Approach 1: US Model (similar to the Mental Health Act when infringing someones liberty)
Childress
A. Effectiveness
Essential to show that infringing moral considerations WILL probably protect
public health
If a policy has little chance of realising public health goals, it is ethically
unjustified eg. restricting movement of a certain population for no reason
Even if policies dont infringe moral considerations but are simply
ineffective, they infringe moral requirements eg. public money should be
well spent and the efforts expended should be worthwhile
Eg. Plain packaging of cigarettes assumed that this will reduce
consumption due to reduced appeal BUT this results in discounting which
may INCREASE consumption, not reduce and no Regulation Impact
Statement was prepared prior to this policy being implemented (caveats:
disputes concerning statistics, eg. confounders like tax changes)
B. Proportionality
Probable benefits outweigh > infringed moral considerations
Risks/ benefits ratio
How to balance different things?
C. Necessity
Not all effective and proportionate policies are necessary to realise the
public health goal that is sought must try and find least restrictive route
If a policy will infringe a general moral consideration, this is a strong moral
reasons to seek an alternative strategy that is less morally troubling
Eg. TB and immunisation policy that provides incentives > forcibly
detains, that achieves the same end goal is better
Proponents of forcible strategies (eg. compulsory vaccination) have the
burden of moral proof, based on supportable evidence must have good
faith belief, for which they can give supportable reasons that a coercive
approach is necessary
D. Least infringement
E. Public justification
o

Approach 2: UK Model Stewardship Model with the Intervention Ladder
Looks at whole levels of interventions to make sure we are focussed on the right
level
Stewardship: states have a duty to look after important needs of people individually
and collectively
Recognises a primary asset of a nation is its health higher levels of health are
associated with greater overall wellbeing and productivity
Least restrictive most restrictive (no need to memorise)
1. Do nothing or simply monitor the current situation.
2. Provide information/education eg. campaigns to encourage people to
walk more or increase fruit and vegetable consumption.
3. Enable choice to change behaviours, eg. by offering stop smoking
programs, building cycle lanes, or providing free fruit in schools.
4. Guide choices through changing the default policy, eg. in restaurants,
reverse standard (chips) and optional (healthier options) side dishes.
5. Guide choices through fiscal and other incentives, eg. tax-breaks for
bicycles used to travel to work.
6. Guide choice through fiscal and other disincentives eg. taxes on
cigarettes/alcohol; increased parking charges, limitations of parking spaces,
or CBD entry charge, to reduce CBD traffic.
7. Restrict choice, eg. restrict options available to protect people, remove
unhealthy ingredients from foods; remove unhealthy foods from tuckshops.
8. Eliminate choice eg. compulsory isolation of infectious patients.
DONT: attempt to coerce adults to lead healthy lives (all about encouragement),
introduce interventions without the ind consent of those affected, or without
procedural justice arrangements (democratic decision-making procedures) which
provide adequate mandate, minimise interventions perceived as unduly intrusive
and in conflict with imp personal values
o Both approaches show that ind rights can be compatible with common good of public health
As existence of ind rights DEPENDS on provision of basic goods
At least up to a certain point on the ladder
Application 1: Swine flu
o Was it justified to infringe ind autonomy for the sake of others? Pts rights to travel
withdrawn, travellers stopped and questioned at airports
o Precedents: Typhoid Mary (lifetime quarantine), Black Plague (houses shut up if person
found ill)
o Pandemic phase: our systems of law change go into Martial Law eg. will keep everyone
out and restrict freedom of assembly
o Strategies for infectious disease control:
Notification/ contact tracing
Forcible screening
Social distancing, eg. no congregation, you cant go to your job/ school
Role of criminal law, eg. we prosecute people with HIV who go around and keep
infecting people
o

Ethical decision-making in influenza pandemic should include:
Consistency in applying standards across people and time (treat like cases alike)
Decision-makers should be impartial and neutral, eg. not a person whose child has
swine flu
Ensure those affected have a voice in decision-making and agree in advance to the
proposed process
o Approach 1: Childress
A. Effectiveness: forgot about the boats, but in general quite good
B. Proportionality
C. Necessity: Yes
D. Least infringement
E. Public justification: Yes if too many people are allowed in SARS will spread and
use up our healthcare
Application 2: Fluoridation
o Approach 1: Childress
A. Effectiveness: Yes
B. Proportionality: Risk/ benefit? (harms fluorosis, Ewings sarcoma bone cancer)
C. Necessity: Other alternatives lower on the ladder?
D. Least infringement: Coercive/ paternalistic (compulsory choice), consent required
where potential for harm?
E. Public justification: Satisfies a number of stewardship DOs
o Approach 2: Stewardship ladder
We are at 8. Eliminate choice eg. compulsory isolation of infectious pts
Need to consider:
Risks vs benefits: need to know benefit is so huge that it is justified in taking
out choice 1. Reduction of health inequalities, 2. Reduction of ill health, 3.
Concern for children (vulnerable group) BUT what about
Potential alternatives ranked lower on the ladder (minimising interventions
that affect imp areas of personal life)
Role of consent when harm (not coercing adults)
o Practically not feasible to seek ind consent people move to and from the area cant
consent every single ind so should fluoridation never be implemented?
o With water fluoridation, a whole area either receives fluoridated water or does not
o Ranked lower on ladder: just fluoridating salt or milk rather than water
o
Immunisation
Public Health Aspects
Immunisation is the most cost effective public health intervention next to clean drinking water
Indigenous children have lower vaccine coverage at 12 month milestone (need to close this gap)
Conscientious objectors account for 2-3% of the Australian population
Vaccination has prevented more suffering and saved more lives than any other medical procedure
this century eg. smallpox eradication, polio elimination from most of the world, reduction in invasive
Hib and meningococcal disease
NHMRC Standards of Childhood Immunisation

o Easy availability of services, no barriers, free of charge
o Use all encounters to assess and update immunisation status, catch-up vaccinations
o Education to parents and guardians, informed consent
Consent must be obtained before EACH vaccination
o Withhold vaccination only for true contraindications
Two absolute contraindications:
1. Anaphylaxis following a previous dose of the relevant vaccine
2. Anaphylaxis following any component of the relevant vaccine (not just
antigen or toxoid, also things like egg allergy if trace of egg)
Contraindications to LIVE vaccines: immunocompromised or pregnancy (delay until
mother has delivered)
Significant acute illness (systemically unwell and T > 38oC
o Give all vaccines due on same visit
o Record keeping, record AEs
o Vaccine cold chain management
o Properly trained staff with ongoing education
Pre-vaccination screening checklists: unwell, immune suppression, severe rxn to previous vaccine,
severe allergies
Vaccination schedule decided by: Aus Technical Advisory Group on Immunisation (ATAGI), NHMRC,
National Immunisation Committee, public submission (puts it out for public consultation)
ATSI: All routine vaccines + HAV, influenza, pneumococcal
o Neonatal BCG in areas of high incidence
Vaccine storage: cold chain 2-8oC (frozen vaccines dont work)
o There has to be a chain of command
o Need to have person(s) accountable or one dedicated person
o Domestic fridges no longer to be used for vaccine or other product storage
o Twice daily temperature recording
o Check T every time you go to the fridge to get a vaccine
AEs Following Immunisation
o Immediate: anaphylaxis, vasovagal episodes
o Common: local site rxns, low grade fever, malaise
o Uncommon/rare/serious: febrile convulsions, brachial neuritis, intussusception, etc
Notification of a serious consequence of a vaccine to Queensland Health is a legal requirement of
doctors/ providers
Key barriers to high immunisation coverage (10-15%): Uncertainty, lack of information, access to
service providers
o Also parental misconceptions/ fears, failure to track and recall children, missed
opportunities (invalid contraindications, lack of simultaneous administration)
Anti-vaccination lobbyists: variety of backgrounds and motives, usually lack a strong scientific
background, arguments appeal to a parents deep-seated concerns for the health of their children
and their fear particularly of injections
6 common misconceptions about vaccines:

Diseases were already disappearing because of better hygiene and sanitation (BUT consider
Hib disease)
o Vaccine paradox: majority of people who get disease have been vaccinated
o Hot lots (contaminated) vaccines are associated with more adverse events and deaths (BUT
such vaccines are withdrawn eg. rotavirus vaccine and intussusception, 2010 influenza
vaccine and febrile convulsions in young children)
o Vaccines may cause many harmful s/efx, illnesses and death (the DTP-SIDS myth)
o Vaccine preventable diseases have been eliminated
o Multiple vaccinations at one time increases s/efx and overloads the immune sys (BUT body
has capacity to develop 10^11 Ab specifities, these are only <200, 11 vaccines at once uses
0.1% of the immune system, vaccines given simultaneously or in combinations induce similar
humoral immune responses as when given separately and children are exposed to few
vaccine antigens today than in the past)
Vaccine Paradox: an apparent paradox that as immunisation increases there are increasing
proportions of cases of the disease in immunised children this is NOT TRUE

General Practice Aspects
o
Conscientious Objection Form:

o Provider Declaration: I declare I have explained to the parent and child the benefits and
risks associated with immunisation, as well as the potential dangers if the child is NOT
immunised
o Parent/ Guardian Declaration: Is have been given the opportunity to discuss any concerns. I
have a personal, philosophical, religious or medical conviction that vaccination should not
take place.
Vaccination: Anaphylaxis response kit (adrenaline) vaccine storage (cold chain) pre vaccination
screening vaccinate record vaccinations on Australian Childhood Immunisation Register
discuss after-care (paracetamol for fever or pain, inform of expected AEs) observation (at least 15
mins for risk of anaphylaxis) inform date of next vaccination
o Pre-vaccination Screening checklist:
Has a disease that lowers immunity (eg. leukaemia) or a treatment that lowers
immunity (eg. steroids)
Has a past Hx of Guillain-Barre syndrome
Was a preterm infant
Identifies as an ATSI, etc
Vaccine effectiveness
o Primary vaccine failure is a possibility and impact of other factors including production,
storage and administration on effectiveness of vaccination programs
o Secondary vaccine failure: waning immunity
o Adverse events (febrile convulsions) occurred in Australian children receiving the trivalent
Influenza Vaccine in 2010 Program suspended current recommendations are to avoid
in under 5
Vaccine has NO causal association with:
o SIDS, autism, MS, IBD, diabetes, asthma
Vaccination Injury Compensation Program: intended to reduce lawsuits against physicians and
manufacturers, guaranteeing vaccine supply, while providing those claiming injuries a reduced
burden of proof and appropriate compensation
o Vaccine injury table includes anaphylaxis, and encephalopathy after pertussis vaccines
Ethical and Political Aspects

Ricky James and I couldnt find the lecture recording of this one (from 2013) so continue at your own peril
Case 1: 2 sets of parents refused to have their children vaccinated against polio in Belgium (where
polio vax is compulsory <18 months) convicted each parent fined E5500 and sentenced to 5
months in prison
Ethical issues:
o

Autonomy, consent, rights and interests:
o Whose interest: adults or children?
Consenting for children has analogies with normal consent
Information provision prior to vaccination, discussion of parental concerns
Dismissive attitudes from doctors to anti-vaccination arguments reduce
immunisation rates
o Review of consent for children:
Parents consent for child in their best interests how do you judge the childs best
interests?
As it is probably actually NOT in the best interest of any individual child TO HAVE the
vaccine but rely on the herd immunity, if that is high enough
o Issue of risk perception in parents:
Perceive risks to be more real than advantages as risks are more visible than
disease when the vaccination rates are as high as they are and disease rates are low
Perceived low risk of getting illness, even if not immunised
Perceived low risk of effects of illness
Parents are risk-averse in relation to own children
o Factors associated with low immunisation rates:
Socially disadvantaged/ poor
Frequent family moves
Sole parents, 3 or more children, family disruption
Mother or children ill/ chronically ill
Demographic factors
o Barriers to immunisation:
Social/ illness factors (as in dot points above)
Anti-vaccination campaigns/ groups
Dismissive, insensitive attitudes by doctors to anti-vaccination arguments

Media reports
Suspicion of conventional medicine/ health consumerism and rise of alternative Rx
(steady rise in conscientious objectors since 1999)
o Is immunisation a form of child protection? Does failure to immunise amount to child
abuse? Eg. NSW court enforced immunisation of a baby born to a HBV positive mother
Public good vs individual good
o Herd immunity (high vaccination rates) unvaccinated benefit without risks
o Herd immunity is a type of common good
Is there an OBLIGATION to contribute to common good?
Is failure to immunise an illustration of modern, insular, nuclear lifestyles that do not
include commitments to social solidarity?
Is failure to immunity = harm to others?
1. Directly harming another is usually seen as more serious than failing to
benefit another
2. But if protection from harm is seen as a basic (positive) right, failing to
benefit is arguably a significant harm
3. Failing to immunise contributes to reduction in herd immunity/ public
good, which reduces protection from harm eg. risks to other children and
risks to unborn children (rubella)
o Immunisation paradox: Its best that everyone be vaccinated except me (self-interest
position, prisoners dilemma) if too many believe this, we will all be worse off
Therefore: you better hope that no one else thinks like you
Defection only works in the short term
There are good, prudent, self-directed reasons to MODERATE self-interest, as well as
public health/ altruistic reasons
o Case for compulsion:
Argument: ensuring non-immunised group remains small maximises herd immunity,
costs are imposed by diseases, especially eradicable diseases
Counter-argument: if same immunisation rates can be achieved without compulsion,
it is better to avoid compulsion better for GPs to utilise shared decision-making
model than be policemen
Policy: overall aim is to maximise immunisation rates
o COAG sets benchmarks for childhood immunisation States are expected to maintain or
improve immunisation rates for children aged 4 years (measured at 5 years), for indigenous
children at 1, 2 and 5 years, and in areas of agreed low vaccination coverage
o National Health Performance Authority: provides information on the performance of
hospitals and other health care organisations
Set up under COAG and National Health Reform Act 2011
Produced the Healthy Communities: Immunisation rates for children in 2011-12
report
Policy Models:
o 1. No regulation
Eg. UK: no legislation, no mandatory or school-entry program
o 2. Compulsory

Eg. Slovenia: mandatory program for 9 infant/ early childhood diseases (so no need
for school entry requirements) and exemptions are medical only
This compulsory vaccination increases obligation on the government to ensure
vaccine SAFETY so Slovenia introduced a NO-FAULT compensation scheme
3. Quasi-compulsory
Eg. USA: school-entry immunisation laws (focus on preschool)
Variations bw states in entry provisions, enforcement, exemption satisfaction
Exemptions: medical, religious, non-religious/ philosophical
System helps in rapid exclusions during disease outbreaks (banished from attending)
Criticism: may cause delayed vaccination
Model not in force in AUs but has been urged by the AMA
4. Compulsory choice
Eg. Australia: in response to NHMRC recommendations, variation bw states but gist
of it is immunisation Hx ONLY required on enrolment, these records are kept,
non-vaccinated children are excluded from coming in during outbreaks, exemptions
are allowed, variations in provision details, exemption applications and enforcement
NSW: strengthening of provisions recent amendment to Public Health Act (NSW)
where checking of vaccine records is compulsory in day-care facilities
Given staff power to turn away those without documentation (exemptions
of GP advises would be medically harmful, on a recognised catch-up
program, conscientious objector
Central aim: prompt catch-up of those not fully vaccinated NOT a no jab, no
play policy continuation of exclusions of unvaccinated children in cases
of disease outbreaks
QLD specifically: trying to follow NSW lead
Though currently NO formal school entry requirement legislation, childcare
centres required to merely record vaccination status, school exclusion
provisions (seems to be more about transparency and documentation)
Low vaccination rates: Gold Coast, inner Brisbane, Sunshine Coast, Noosa
Public Health Exclusion of Unvaccinated Children from Child Care
Amendment Bill was introduced 2013 not about punishing parents but
their legally binding right to protect children rejected on basis of
arguments against enforcement/ perceived vaccine dangers/ impacts on
parents using child care committee instead recommended legislation to
only encourage parents to vaccinate
Tried again in 2014, Government strategy released:
o Expansion of pharmacy vaccination trial to include adults (flu,
pertussis, measles)
o E-reminders for parents on due dates for childhood vaccinations
o $3 million incentive for hospitals to develop new innovations to
increase rates
5. Incentives
Eg. Federal Government Immunise Australia 7 point plan from 1998 (federal
overlay on state strategies)

Incentives to doctors: GP division activities and funding BUT this was
removed in 2013, except for notification of immunisations to ACIR
Incentives to parents: linked to Commonwealth benefits (Family Tax Benefit
and Child Care Benefit)
Conscientious objectors retain Commonwealth benefits, following
information on risks/ benefits from GP (and getting the formal certificate)
Pay more attention to access issues than anti-vaccination lobby
National Immunisation Strategy for Australia 2013-18 continuing the 7 point plan
(from above) as childhood immunisation coverage increased dramatically under it
Public funding:
o
o
Pneumococcal vaccine: more cases and more severe sequelae than meningococcus, had no
initial public funding but now on subsidised schedule
o Meningococcus C: publicly funded $300m in 2003
o Is there a gap bw best practice (EBM) and political expediency (being convenient and
practical despite possibly being improper or immoral)?
o Meningococcal cases received high media profile was the meningococcus program a vote
catcher?
o Issue of complacency vis a vis partial coverage by vaccine
o How much public/ professional pressure is required before governments act?
o Issues of equity and resource allocation
Monitoring policy problem?
o 2010 Fluvax (H1N1 swine flu and 2 strains seasonal flu): not clinically tested in children prior
to TGA authorisation febrile fits in 1:100 vaccinated children, brain-damaged WA infant
cancellation of WA program and then national program
o Response by authorities criticised as slow

o Dispute over vaccinating healthy children led to reduced confidence in vaccination
Adults:
o Cases where unvaccinated adults infect their children eg. pertussis
o Compulsory immunisations: health workers, armed forces
o Public benefit?
Ethical framework for immunisation programs (Isaacs, 2012):
o 1. Program should benefit the ind and the community
o 2. Targeted diseases should be sufficiently severe and frequent to justify the risks and
expense of the program
o 3. Vulnerable groups within the population should be targeted
o 4. Obligation to monitor for AEs and for disease incidence to ensure safety and effectiveness
o 5. When immunisations are voluntary, vaccine recipients or their parents should be given
sufficient information to make autonomous, informed decisions
o 6. Incentives to participate in public health programs should not be coercive
o 7. Public health immunisation programs depend on mutual trust, which may be threatened
by circumstances such as excessive media publicity about AEs associated with vaccines
Care of Elderly
In general, the global population is living longer (hygiene practices, medical improvements) though
great variety in life expectancy across the world across the board females have longer life
expectancy
Only just relatively recently, in 1909 when the Age Pension was introduced in Australia, 96% of
people died before they reached pension age. Now not only do most of the population reach 65 but
life expectancy is increasing each year (less smoking)
Age-associated diseases: chronic illnesses
o Dementia
Incidence in Aus rapidly increasing
Poor performance of pharmacological txs
Adequate care expensive and burdensome on carers
Loss of decision-making capacity discrimination/ devaluing due to loss of
culturally highly valued characteristics eg. independence (as a society we highly
value freedom and independence and they have lost this)
Preservation of autonomy via AHDs and EPAs is problematic
Preference for cognitive capacity devalues emotional capacities for rewarding
experiences
Maximise their comfort: should encourage autonomy to the extent that it can be
exercised (small decisions), encourage relationships with others, environmental
design and safety to augment their well-being and freedom, imp of carers and
support (burden that falls on carers in many cases on women)
Over half of aged care residents have dementia
o CVD: CCF, stroke
o Diabetes
o Cancer
o Renal failure, etc
Resource allocation/ limiting care: health expenditure rises in exponential fashion with age should
we restrict health expenditure in people in the older age group?
o Expenditure on elderly high and perhaps of less benefit (not really of much benefit?)
No benefit eg. gastrostomy tube (PEG) placements for feeding as cant eat properly
prolong a persons life vs palliative care
Poorer outcomes eg. in surgical procedures
o Fair innings argument: use that money more beneficially in other ways?
Youve already had a fair innings, by the time you get old, we as a society should be
prepared to rule that $$ would be spent in ther older age gropu is shifted to younger
age groups
Limit care to Sx relief after set age and reallocated saved $
Counterarguments:
But how much would you save?
Variability in health status means cut-off is arbitrary (some marathon-
running 80yr olds who have an interest in having surgery equity
argument)
o Balance bw gov (who finance a lot of healthcare), family and ind responsibility for care
Trend to increase in responsibility (tax rebate if you pay premiums for private health
insurance)
Increasing retirement age (gov pressured to manage expenses in face of ageing and
technology)
Superannuation and health insurance
Limits to care to previous and next generation: two-job families, women remain
major carers
Age Discrimination Act 2004:
o Unlawful to discriminate on the ground of age (direct or indirect)
o Unlawful in relation to work and certain other areas (unless unable to carry out work)
o Unlawful to discriminate on the ground of age if a particular exemption is applicable
o Unlawful for a person who provides goods or services, or makes facilities available, to
discriminate against another person on the ground of the other persons age HOWEVER
exempted health programs and persons delivering them are NOT acting unlawfully eg. a
program administering free influenza vaccines to older people, based on evidence showing
that older people are at greater risk of complications
o General exemptions: NOT unlawful for a person to discriminate against another person on
grounds of age, by taking their age into account in making a decision relating to health goods
or services if the age decision is reasonably based on evidence, and professional knowledge,
about the ability of persons of that age to benefit from goods or services
o Notes:
Exceptions where service is only relevant to a particular age group, or where health
risks are different according to age group
So discrimination by age, IF no reasonable evidence or professional knowledge
pertaining to benefits/ detriments of that age group regarding health services IS
unlawful
Overtreatment: surgical procedures, PEG, futility definitions (clinician may say tx is futile but pts
family wants you to keep on txing BUT futile tx: abusing or harming the pt and not benefitting them,
yet this commonly continues to occur), legal liability concerns
o Doctors treat diseases: problem of treatment imperative vs sanctity of life although
doctors protected by legislation, we have professional concerns over legal liability of not
txing, or not adequately providing care, and medicocultural driver of our profession being all
about txing disease reticent to stop txing esp if means pt will die at an earlier time
o Bioethicist from Fair Innings argument was arguing for undertx in the aged (once you reach a
certain age)
Ageism: discrimination on the basis of age
o Perceived burden (esp $$) of elder care vs disability rights in this distinct group
o Is limiting care a type of ageism?
o Younger people cannot conceptualise ageing (doesnt come into conscious field until later
on) youthful omnipotence and discounting value of future states
o Denial, fear of ageing and dependence (where in our society we so highly value freedom)
o Devaluing of social non-contributors
o Ageing is (oddly) discrimination against our future selves
o Negative stereotyping: stubborn, mentally/ physically weak, unable to learn/ care for
themselves, voracious health consumers, burden to society
o Can lead to economic, social and psychological costs: eg. age discrimination and
employment job adverts and culling processes directly showing discriminatory preference
for younger recruits: energetic, dynamic, innovative
o NOTE: one of the most imp contributors in rising health costs is increasing technology and
demand for these
Ageism and the law: the law has been adapted to recognise that aged persons are NOT less worthy
o Evidence provided to argue for systems, policies and laws that accommodate differences in
the ageing population and recognition that chronological age is NOT destiny
o Gerontologists who show us that biological ageing and social ageing are ind to each human
being research that comes from gerontology is at the forefront of age law reform Age
Discrimination Commissioner, Hon. Susan Ryan
o Should there be age bars in areas like workers compensation, income protection insurance
and drivers licencing requirements?
Residential care: only 1 in 4 over 85yrs live in care accommodation, with resistance to moving from
home care
o Overvaluing independence vs costs of loss
o Most people dont want to go into a setting where they will have to be more dependent
o Tension bw independence and safety: paternalistic temptation
o Staff of residential care facilities poorly paid
o Community care alternative also expensive and stressful
Residential care: governed by BOTH Commonwealth and State legislation
o Commonwealth: Aged Care Act 1997:
Funding of subsidies of aged care places (gov only interested in funding a particular
facility standard so are interested in quality of care given)
Quality of Care Principles (all facilities must adhere to):
Health care, management, staffing, lifestyle, etc

Riverside Nursing Home (Melbourne) license revoked and shut down in 2000
poor standard of care eg. giving kerosene baths to get rid of infestations
rather than correct tx and preventive measures
Rights and dignity of those receiving care
Accreditation and licensing of facilities
o State: various statutes Health Act, Residential Services Act, Disability Services Act, etc
Guardianship legislation
o Restraint and seclusion: dementia pts may be disoriented, confused, aggressive and
disruptive
May be required for protection of pt and staff
Principle of minimal restraint necessary for safety and protection, as long as best
interests of pt BUT some facilities are ready to use drugs/ physical restraint to make
it nicer for staff
Patients without capacity Guardianship and Administration Act 2000 minimum
force necessary and reasonable to carry out health care authorised some
uncertainty concerning application, various conditions on use of physical and
chemical restraints
Elder abuse: eg. children of cognitively impaired person offer to take over management of their
money and then use it for their own purposes
o Aged Care Act 1997: mandatory reporting by providers/ staff of reportable assaults (contact,
unreasonable use of force, sexual)
o Elder abuse subject to professional disciplinary sanctions eg. doctors response must be
proportional even in self-defence against aggressive pt, if excessive, may be found guilty of
elderly abuse
Anti-ageing:
o Aims: prolonged disease-free lifespan immortality, fountain of youth, early detection,
prevention, tx, reversal of age-related dysfunction, disorders, modify processes of ageing
o Denial of death? playing God too huberous
o Continuation of the tx imperative? X Futile tx
o People who expressed a positive self-perception of ageing tended to have a survival
advantage of 7.5yrs over those who had a negative self-perception of ageing
o Questions:
Is ageing a disease? Is normal ageing pathological? What medicine/ geriatrics is
interested in. If you think immortality is achievable, you think you can eliminate
ageing
Is anti-ageing different from healthy ageing?
Is anti-ageing medicine different from geriatrics?
Extreme end: does anti-ageing = enhancement? (trans-humanism move into next
evolutionary age)
Defensive Medicine, Legal Liability and the Standard of Care
90s: courts more prominent, took over fro the profession in determining standard of care doctors
more defensive (felt exposed) as they had lost self-regulation
Over last 20 years, lots of changing of what the legal standard of care amounts to in response to
various community and professional complaints/ suggestions
Missing CVA: low incidence of serious pathology with h/ache cant do CT scans on everyone
(possible harm radiation), economic reasons, false positives

o Medico-legal issues: negligence, deregistration, recertification
o Health care system: risk minimisation
Diagnostic strategy:
o Probability diagnosis: possibilities of serious pathology in the back of your head that you
ought not to miss
o Pitfalls (often missed)
o The Seven Masquerades: may not think of them at first instance but need to have them
there as possibilities, these can present in diff ways (depression, diabetes, drugs, anaemia,
thyroid disease, spinal dysfunction, UTI)
o Is the pt trying to tell me something? Eg. In h/ache case the fact she never gets h/aches
and now shes at the doctor (also never), maybe that is significant
Negligence review:
o A Act occurred (or omitted) in context of duty of care
o B Breach of duty of care occurred
o C Causation that breach caused damage
o D Damage includes physical or mental injury or economic loss

Determine the standard of care has this standard of care been met? Eg. in general practice,
many kinds of vague cases so perfectly reasonable b/c of necessity to give things like just an
NSAID, as long as safety mechanisms are in place (if progression notify GP, call tomorrow,
etc)
Standard of care:
o Bolam principle
o Rogers vs Whittaker changed things around (was about disclosure but judge also put down
statements on standard of care)
Standard not determined solely by Bolam principle (this was defeated)
BUT Bolam endorsed in cases after, although Court will still make the final decision
on the standard of care in that case
Peer professional opinion WILL figure (has an influential, often decisive role to play),
but not significantly in disclosure cases generally speaking, NOT a question on
which the answer depends on medical standards or practices
o Modifying the standard of care:
Medical Indemnity Crisis (lot of damage awards and indemnity premiums for doctors
going up eg. rural GPs would leave obstetrics as they were losing money paying such
high indemnity premiums) biggest indemnifier collapsed (United Medical
Protection) Gov commissioned Review of Law of Negligence which recommended
modifications such that standard of care was wrestled back from core and given
back to doctors
Return standard to profession BUT to ensure accepted opinions were soundly based
Civil Liability Act 2003
Currently: Bolam revisited where back to profession to determine standard with only
qualification being Court able to say although you guys share that opinion we think
thats bizarre (safety valve) so peer opinion cannot be relied on if Court rules that
opinion irrational or contrary to written law
Civil Liability Act 2003: modifies general law of duty and standard of care, and causation into statute
which resorbs common law (previously just common law)
o 2 areas now distinct wrt standard of care:
1. Diagnosis and tx: modified Bolam test accepted professional practice is very
imp but not absolutely determinative
2. Disclosure: Rogers vs Whittaker proactive (reasonable person) and reactive
(particular person) duties where professional practice not influential in determining
o Duty: what precautions would a reasonable person be expected to take? (Probability of
harm if care not taken, likely seriousness of harm, burden of taking precautions to avoid risk
of harm, social utility of activity that creates risk of harm)
o Causation: balance of probability where plaintiff has onus of proof
Factual causation: breach of duty was a necessary condition for harm occurring
Scope of liability: Court will have some discretion is it appropriate, based on
community standards, to agree this breach caused the harm? Objective test
Malpractice claims: 2 largest categories are diagnostic errors (on the rise) and surgical tx errors
o Types of diagnostic errors:
Failure to diagnose
Delayed diagnosis
o
o
o
Wrong diagnosis
Case 1: Oesophago-gastric cancer delay in diagnosis: this case was like h/ache case where
unreasonable to expect invasive diagnostic procedures for every pt b/c of way it presents
standard of care has to take into account this disease presents in vague/ odd ways
factored into decision about whether a delayed diagnosis was negligent or not
Case 2: Homocystinuria delay in diagnosis: hard to diagnose as this masquerades mean
interval of 11 years from onset of major signs until diagnosis
Case 3: Breast cancer failure to diagnose but causation not made out malignant lump was
not the same as original lump so doctors failure to examine breasts the second time WAS a
breach of standard of care but NO causation bw breach of standard of care and harm that
results (new malignant lump was not cause of doctors breach so could not find the doctor
negligent)
Breast cancer is hard to assess and diagnose, though incidence goes up with age,
womens perception is different (think Ive reached my 60s now without breast
cancer, so I must be risk free now not true though)
Highest number of delayed diagnosis legal claims at age 30 (although incidence
higher at 60s) as in younger age group doctors are admittedly less on the ball to pick
up these cases as is less frequent, and for a 30yr old, more harm is done as
significantly affects her life expectancy while she is younger
Human Enhancement and the Goals of Medicine
Links to anti-ageing and the distinction bw medical tx and enhancement: txing humans for medical
problems vs trying to enhance ourselves (grey in prevention area for healthy inds)
US physicians survey:
o Considerable ambivalence regarding enhancement: half consider most medical interventions
could qualify as enhancements and 40% think that enhancements alleviate human suffering
(medical tx)
o Half think that these lawful enhancements should be equally available to all BUT majority
think that specific enhancements should be available in market but not covered by insurance
o Most think that enhancements for competitive advantage (eg height hormones) should be
allowed but not promoted (ambiguous) and wide variation in willingness to prescribe various
enhancing interventions
Chicago medical students survey:
o 18% used psychostimulants at least once in their life, increased use through med school, 2/3
users endorsed non-medical use and 1/3 users would continue use into their professional
careers
o Ritalin increases dopamine transmission, stimulates CNS, increases attention, similar to
amphetamines
o Half responders thought psychostimulants use is a problem
o Questions:
Does such enhancement lead to a new normal? (no longer controversial for
students to use psychostimulants?)
Cognitive/ performance enhancement is not cheating, but no one should be
expected to take drugs is it unfair?
Should all doctors take stimulants to improve performance?
Enhancement: wish-fulfilling medicine where doctors use medical means (technology, drugs, etc) in
a medical setting to fulfil the explicitly stated, prima facie non-medical wish of a pt
o Ind has a particular wish about enhancing something and asks doc to do it for them

Medicinal and procedural interventions that can be used to improve a human characteristic
or state beyond what is necessary to optimise their health
o Key problem terms:
Non-medical wish: are these easily distinguished from medical motivations?
Necessary: who defines what is and what isnt?
Health: how well defined are the boundaries bw health and other areas?
Evolution, history and enhancement: development of agriculture stay in same spot civilisation
time for things other than finding food time to study to minister for the sick interrogate
psychological problems start thinking of ourselves as centre of the universe, such imp things
Kim Kardashian on Cosmopolitan cover lol
o
o
o
o

Crucial developments:
Man replaces God as sum of all things (in older societies, man was not at the
centre) the ind becomes central
Science gives man power over nature (May reduce susceptibility to chance
occurrences) mans science can remove chance from evolution through
deliberate design
Human intervention can dramatically improve QOL (development of medicine) but
rapid eclipse of tx/preventing by enhancement possibilities medicine enlisted in
fulfilment of ind wishes

Age of self-realisation/ self-enhancement/ self-creation/ perfection (we want to be
recognised and appreciated for what we have done) inauthentic selves OR can
enhancements liberate a more authentic self?
Categories of enhancement:
o 1. Cosmetic/ aesthetic: cosmetic surgery, body-piercing, height manipulation
Reconstruction/ breast augmentation on basis of medical need vs doctors enhancing
breasts beyond medical needs (non-medical related)
o 2. MSK/ athletic: steroids for body builders, Lance Armstrong taking EPO, training at high
altitudes
o 3. Cognitive/ affect: psychostimulants, what about memory training courses to improve
memory and concentration?
Are personal digital assistance (PDA) devices a form of extended brain (collective
intelligence in the Internet?)
Improved performance on high skill tasks (pilots) with cholinesterase inhibitors
SSRIs but also over-prescription and medicalization of normal sadness and
normal bereavement vague boundaries of affective illness
o 4. Ageing/ anti-ageing: what about low calorie diets to increase life expectancy?
Is ageing a disease per se or a normal RF for diseases that seem to occur with
increasing age?
Anti-ageing movt: see ageing as a disease and undesirable, want to enhance the
human race
Gerontologists: see ageing as a normal process/ risk factor, that DISEASES are
undesirable and the anti-ageing movt is a type of enhancement
Ageing as a disease increases public support for research and masks enhancement/
human engineering claim
Treatments (eg drugs) seem to both tx specific disease and allay ageing blurred
distinction
If drugs are for specific diseases, subject to greater TGA/FDA scrutiny
If anti-ageing txs are enhancements, may not be covered by insurance
Possible outcomes of ageing research:
1. Prolonged senescence (prolonging life without improving health) from too
much research on ageing per se rather than research on age-related disease
2. Compressed morbidity: reduce incidence of disease into old age would
this distort the meaning of normal, anticipated decline? Conflates ageing
and diseases of ageing
3. Decelerated ageing: consequences of healthier 90yr olds? Discrimination
of young?
4. Arrested ageing: continual reversal of age-related damage to no ageing at
all
o 5. Moral: what about dad reading to the kids which increase moral training?
Some people think the institution of morality is just another product of evolution
think protomoral behaviour going on in primates (grooming, defending, etc)
Morality as an evolved process or institution

Think morality fails to keep pace with science and technology where some moral
beliefs more suited to pre-scientific times eg. sympathies limited to kin/ nearest
where the modern world is globalised
Think primitive to look after your own families, dont worry about whats happening
overseas, should assist developing countries more our primitive moral capacities
cant keep up with terrorism, climate change
Can we increase our moral capacity? Eg. oxytocin (love drug, makes more
compassionate and gentle)
How different is this from traditional social education?
o 6. Negative enhancement: negative selection against undesired traits eg. using PGD to
select out disabilities prevention of disease
Is having a disease or a socially undesirable condition prevented a kind of
enhancement?
Categories of issues that arise with enhancement:
o 1. Enhancement and the GOALS of medicine: concept of the integrity of medicine
Goals of medicine: prevention of disease, promotion of health, relief of pain, cure of
maladies, palliative care, avoidance of premature death, pursuit of peaceful death
(all infused with value ideas eg. whats a premature death?)
BUT other definitions include QOL, length of life, WHOs definition of health is huge
and overarching individual or communitarian definition?
Are goals of medicine internal or should it be imposed from outside socially?
Social pressures and competition do influence perceptions of wellbeing and health
normal becomes a moving target for medicine eg. the Ashley case over disabled
child to attenuate growth was alignment of goals of medicine depending on which
set of goals is selected
Is there an acceptable range of normal beyond which medicine should not be
applied (enhancement zone)?
How to evaluate goals of medicine? Needs vs wants
o 2. Medical treatment and normal training vs enhancement
How big/ ugly/ deformed does a nose have to be before it qualifies for medical tx
and public subsidy?
Whats the principled difference bw training at high altitude and using EPO?
Is overmedicalisation a concept to allow people in the normal range to be
enhanced? (Actually health persons having unnecessary therapies?)
Are memory training and transcranial magnetic stimulation ethically different? They
all modify the brain
Lack of consensus about objective descriptive categories of disease (boundaries of
what constitutes a disease) blurred boundaries, vague
Sorites paradox: heap of sand if you were able to physically pick up one
grain at a time, when will it stop being a heap of sand? 2 or 4 grains?
o 3. Hubris (excessive pride or self-confidence), dignity, humility and identity
There is a normative natural order to lifes events and their unfolding
Life is a gift: so replacing Gods plan with parents plan for children (hyperparenting
that is an anxious excess of mastery and dominion including enhancement), displays
lack of humility and acceptance about our lot in life too hubris and incongruent
with what life is all about
Enhancements are unnatural as well affect your fundamental identity and
personhood will cause humanity to eventually go extinct
BUT we already try not to preserve the natural order in many ways (what medicine
is about) eg. general purpose enhancements like sending to a private school are
arguably ok in contrast to specific enhancements like drugs (we already have
disparities, why try to increase the disparity?)
Humility is not necessarily a fixed virtue outside the religious context, are things like
wisdom and compassion inevitably tied to senescence?
Suffering may be character-building but who will reject preventions/ tx already
achieved? Turn back on medical txs already achieved for suffering?
Preference for status quo is an irrational bias
We already accept sudden changes in personhood eg conversion are tech
means also ok in developing our identity?
4. Justice: equity, fairness and access
Enhancements are a western indulgence and will increase the gap bw haves and
have-nots
Increased disparities threaten democratic institutions need to draw the
boundaries somewhere as everything within the fence will be publicly subsidised
health systems cannot absorb extra expenses for enhancements but private
payment reflects and exacerbates disparities
Potential issues of victimisation and enslavement of humans by post-humans
BUT up to a point we already accept wide disparities already eg. school education,
housing
Natural genetic differences are not generally considered unfair
Democratic institutions are sufficiently robust to manage developments and
minimise harm
We may reduce the gap eg. improve cognition in less cognitively gifted people
Blurring bw enhancement, prevention and tx means that if we improve
enhancements, there will be significant gains for prevention and treatment
5. Safety
S/efx of drugs
Drugs may be bandaid fix to avoid better, deeper social and educational therapies
eg in ADHD
External software enhancements have issues of privacy
Education and training are cognitively mediated and responses are chosen, whereas
drugs act directly on the brain
BUT dangerous substances like alcohol are currently marketed with limited safety
warnings, we already do things like education in young children at an early age who
have no say in the matter (non-deliberated absorption), and low cost, safe
enhancers like fluoride can contribute to public as well as ind good
Transplant Allocation (Renal)

Note: Missing L and recording on http://www.donatelife.gov.au/
Not enough kidneys to go round for those who need it

Living donor: growing confidence in safety of this procedure in 90s, now decline as more kidneys
from deceased donors have brought down waiting times (dont have to turn to this)
Deceased donor: dies under appropriate circumstances and family have agreed to donate their
organs (deceased donors have grown over the years, biggest donors are those who have died from
CVAs NOT car accidents)
Live donation:
o Advantages:
Avoids long waiting time for deceased donor (substantial inequity built into waiting
list if youre the wrong blood group)
1-2yr wait for Blood Group A
3-4yr wait for Blood Group O
Can be done as a planned procedure (if from deceased donor transplant tomorrow,
pt wont know until tomorrow so hard to plan not knowing when and if your
transplant is going to happen)
Better results (median graft survival much longer than from deceased donors)
o Disadvantages:
A healthy person needs to undergo a significant operation for NO HEALTH BENEFIT
(no chance of any medical benefit to that person at all) primum non nocere
we justify with social benefits to the donor
How much risk is acceptable to take? Eg. donors with heart disease or diabetes. 1 in
2000 will die How much should you restrict someones ability to donate an
organ?
Donor will probably have increased risk of renal failure and possibly earlier death
o Other ethical issues:
Is it ok to advertise/ match people online?
Should donors be compensated for expenses or lost income? Should it be legal for
donors to be paid outright? (Will this put the poor at risk of exploitation?)
o New live donor initiatives to increase no of kidneys available through live donors:
tumourectomised donor kidneys (carries low chance of cancer recurrence), blood group
incompatible (can now crossmatch safely with new technology), positive crossmatch (wife
swap deal of donors of two pairs that are compatible), altruistic donors (who rock up to a
transplant clinic much like people donate blood to donate an organ) should we have a
screening process for these people? Is it appropriate to allow them to do this or is this taking
advantage of people? (eg. some with major disappointment and shame in their life)
Deceased donation:
o Most inds will be better off with a transplant than dialysis vs kidneys are scarce and donors
probably expect them to be used preciously giving them to everybody, irrespective of
prognosis, would greatly reduce community benefit (utilitarian)
o Balancing the rights of the ind against those of society
Should kidneys go to anyone who wants one? If we do this, going to have a v long
waiting list, lot of people will die waiting and everybody is going to do worse off than
if they had a shorter waiting time
Should they only go to those with a good life expectancy?

Should your societal contributions be considered? What about criminals? Equity
vs expectation of community that a criminal ought not to have the same access to
an organ
o The Waiting List: limitations to getting on is based on the pts outlook, prognosis and
medical conditions
Aim: to be as fair to everybody as possible and for everyone to have an equal change
of getting onto the waiting list regardless of location in QLD (rural or no)
Aim: To balance as fairly as possible responsibilities to give as many people as
possible the chance to receive a transplant with responsibilities to get as much
benefit as possible from a scarce community resource
Issues: cardiac disease, infections, cancer, compliance (will trash a kidney early)
Allocation:
o In the past, HLA Match (tissue typing) used to be all the rage but is less imp now with
modern drugs. Seemed fair and equitable for a few people never seemed to come up
waiting a long time, they were from ethnic minorities (diff background with diff HLA types
from those in the donor community)
o so ~1/3rd all kidneys allocated to those with the best match but run primarily on waiting
time now (since day you started dialysis)
Human Research Ethics
Human research: research that involves human including taking part in surveys, being observed,
researchers having access to personal documents, collection of body organs, tissues or fluids (eg
saliva), access identifiable data from a database of a person outside of what you need to do clinically
for that person
Clinical research: experimental intervention that must at least be comparable to the conventional
standard tx and is justified in excluding the participant from receiving the accepted standard tx
o Clinical equipoise: Once a certain threshold of evidence is passed, there is no longer genuine
uncertainty about the most beneficial treatment, so there is an ethical imperative for the
investigator to provide the superior intervention to all participants. Ethicists contest the
location of this evidentiary threshold, with some suggesting that investigators should only
continue the study until they are convinced that one of the treatments is better, and with
others arguing that the study should continue until the evidence convinces the entire expert
medical community
o Designing study: unethical if withholding a person from being able to access conventional,
efficacious txs risks and benefits must be same for novel and conventional tx
o Gaining consent signals pts understanding that they are willing to be subjected to risks and
burdens for purpose of contributing to generalizable knowledge for future generations
always a pt first before a research subject
Research ethics: Form of applied ethics where the primary goal is to protect the research subject
(similar to role as a clinician)
o Began with Nuremburg Code: Nazi German doctors txed prisoners as guinea pigs
o Declaration of Helsinki: principles on safeguarding research subjects, informed consent,
minimising risk and adhering to an approved research plan
Now Aus has the NHMRC Statement (also an Act and can be upheld in law): includes Ethical Conduct
in Research Involving Humans, Ethical Conduct in ATSI Health Research

Focuses on integrity: the research is justifiable by its potential benefit based on a thorough
study of the current literature have to show what youre doing is worth imposing burdens
on participants, even something as simple as accessing their data (breaching confidentiality)
and answering a question that has merit
Standards for sound ethical research practice, professional integrity, data integrity
(dont falsify data)
o Focuses on respect for persons: considering whether the research involves people with
impaired capacity or some groups targeted more than others (eg prisoners, vulnerable,
students by professor convenient sampling, balance of power ethical issues)
Replace term human subjects with human participants
o Focuses on beneficence: minimising harm and discomfort and maximising potential benefits
of research to participants and wider community
o Focuses on justice: avoid groups who are subject to over researching unless research is imp
to that group, design research so selection, recruitment, exclusion and inclusion
All persons have a fair chance to participate in research, not excluding groups just
b/c they are more inconvenient to recruit
o Focuses on dignity and wellbeing: takes precedence OVER expected benefits of knowledge
Research ethics two prominent themes:
o 1. Risk and Benefit
Risk: potential for harm, discomfort or inconvenience and involves gauging
probability of it occurring and severity
Harm: includes devaluation of personal worth (humiliation), social (damage to social
networks eg if you research doing something on fb), legal (discovery of criminal
conduct during focus groups have to say in your ethics proposal what you will do
if these things happen)
Harm > Discomfort (less serious than harm eg anxiety induced by interview or
discomforts of measuring bp) > Inconvenience (less serious than discomfort, eg
filling in a form, time)
Low risk research ONLY foreseeable risk is one of discomfort
Negligible risk research NO foreseeable risk of harm or discomfort, ONLY
inconvenience
Therapeutic misconception of benefit: failure of research participants to appreciate
the nature and purpose of clinical research BE WARY of this if you are the txing
clinician
Underestimate risks and overestimate likelihood of benefits
Confuse clinical research options with ordinary tx and display lack of
understanding of randomisation bw conventional care and novel therapy
you are trialling
Causality not well understood
Highlights importance of adequately informing
Risk vs benefit analysis difficult as difficult to weigh up risk to ind vs benefits to
community (diff categories and measures)
o 2. Consent
Duty to adequately inform higher standard of disclosure for research than
therapeutic procedures and need to inform pts of ALL of their options
o

Eg. Baltimore Painted Lead Houses: study where they rented out homes with varying
levels of lead to families of low SES (hope children would lick the walls)
Aim is to reach a mutual understanding bw researchers and participants
For consent to be valid:
Must no be coerced (by withholding tx or by influencing employment)
Must not be induced by monetary payments (only reimbursement for time
and not so excessive that it would be incentive for person to choose to be a
participant)
Risks and benefits identified as well as knowledge of how the project will
benefit other people know if you plan to publish their data
Situations when participants should NOT be recruited:
o Feel they have no option but to agree
o Too ill or frightened to be legally competent
o Harried or hassled into a decision
o Think their families will be disadvantaged if they dont take park eg. wont be able to access
a conventional care
o From a vulnerable population (as defined in the NHMRC National Statement)
May be b/c of a shared characteristic within the population (eg children, pregnant
women or cultural minorities) or b/c the population is over-research or b/c of power
imbalance (lectures conducting research on their students)
Eg. poor, mentally handicapped, elderly, clinical trials in developing nations
(dilemma: the population here were unable to afford any, so they were unable to
have access to the drugs unless they were in a clinical study, however the study
involved a control arm receiving a placebo)
Waiver of consent: HRECs may grant a waiver for certain research in instances including:
o Participants would likely not object if ask
o Obtaining consent impractical or not feasible (eg. ED pt brought in and testing packing with
ice)
o Sufficient protection of privacy (eg. accessing data in charts)
Also conditions for limited disclosure or opt-out-of-consent eg. psych studies that dont tell subjects
what youre really looking for (need to justify why you are doing this) or observing people in public
spaces (covert observation), role-playing by researchers
Ethics Review: needed before research can begin, a judgment that a human research proposal meets
the requirements of the National Statement it is the responsibility of institutions and researchers
to be aware of the Australian legal requirements that apply to rights for participants
School of Medicine processes (MPhil or PhD): must gain UQ ethical approval for your research
o SOM Internal Low Risk Ethics Review Panel for low risk research or if you hold a current
ethics review clearance from another HREC (eg. RBWH)
o All research that involves more than low risk requires full review UQ Form or National
Ethics Application Form (NEAF), the latter allows several collaborating institutions to just use
the one ethics application for the same project
o Gatekeeper Approvals: person authorised to write a Letter of Authority and Recognition
from an organisation of any type to allow research to access their population eg. Education
Queensland is gatekeeper to allow you to approach school teachers for recruitment
o Two primary ethical considerations relevant to your research:

1. Who From whom will you be gathering information? Eg. institutions own the
tissue, hospitals own pts chart and access to that pts information (doctors own this
as the purpose of this information is for the doctors to do their job, though patients
can request access to it under Freedom of Information)
2. How How will you obtain this information?
Principles of authorship: honesty, objectivity, collegiality and prob of power differentials given
complexity of assigning authorship, as well as ambiguities of the research climate, specific guidelines
are mandatory
o Vancouver rules state that authorship should be based on substantial contribution to ALL of:
A) concept and design of the article, or acquisition of data, or analysis and
interpretation of data
B) drafting of the article or revising it critically for important intellectual content
C) final approval of the version to be published
o First (lead) author should be the person responsible for planning, outlining and shaping
structure of the first draft drives the paper

(See notes for MBBS II, Midsem 2 for notes prior to the midsemester exam)
Substitute Decision-Making, AHDs and EOL Decisions
Refusal of tx: upheld by common law and statutes, symmetrical requirements to consent
voluntary, informed, competent person, specific procedure (cant do a blanket consent or refusal)
o Forms of refusal include legal means:
By a statutory substitute decision-maker
Through a statutory advanced health directive (AHD)
Through a common law AHD eg. Hunter and New England Area v A 2009 NSW
(refusal of dialysis)
o Statutes provide procedures, restrictions, protections
Priority in decision-making: known wishes > best interests
o Substituted judgment: make the choice person would have (good or bad for them eg. Order
the cheeseburger for them even though they have hypercholesterolaemia)
o Best interests: if absolutely no guidance of what that person would have wanted, we make
choices in their best interests
AHDs objections:
o 1. The interests of the incompetent person are not the same as the interests of the same
person when competent different interests of same person, emphasis on current quality
of life
Response: interests when competent are the critical interests (the priority), interests
beyond competence are merely experiential interests, the critical interests are those
which proxies are entrusted to honour and these interests also survive because of
community memory of the competent person
o 2. The interests of the incompetent person are the interests of a different person from the
person who was competent interests of different people, idea of psychological continuity
theory of personal identity, person X has no right to instruct that Y should die
Response: there is no person present once ind has become incompetent, therefore
on persons right to life is infringed by activating the AHD (and eg. Withdrawing tx)
AHDs limitations:
o Conditions of activation of AHD to refuse life-sustaining measures:
The principle must have a terminal illness or condition that is incurable/ irreversible
and so treating doctor and another doctor have the opinion that they may be
reasonably expected to die within 1 year OR PVS OR permanently unconscious OR
illness/ injury of such severity that there is no reasonable prospect of recovery such
that life may be sustained without the continued application of life-sustaining
measures AND
For artificial nutrition or hydration, it is considered that commencing or continuing it
would be inconsistent with good medical practice (think futility, remove dignity of
principal) AND
The principal has no reasonable prospect of regaining capacity for health matters
o Common law AHDs in QLD: lawfulness uncertain in QLD due to wording of Guardianship Act
2000 (eg. Probably are not lawful)

Common law AHDs (eg. In NSW) do not need to comply with good medical practice
so if from another state and do not completely comply with QLD laws, may get in
trouble
Less stringent requirements in common law AHDs: some cases where people made
their own AHD (not the proper form) and in NSW there have been a number of cases
where these have been honoured as long as it is made by a capable adult and is
clear and unambiguous and extends to the situation at hand AND not being
informed/ not discussing the consequences of the decision at the time of writing is
not a basis for ignoring the AHD
o Good Medical Practice: protection of health provider for non-compliance with AHD (eg.
Doctor looks at AHD and says Im not going to follow that what is the protection?)
Powers of Attorney Act: health provider has reasonable grounds to believe that a
direction in an AHD is uncertain, inconsistent with good medical practice OR that
circumstances (incl advances in medical science) have changed to the extent that
the terms of the direction are no longer appropriate (eg. Case where pt was grateful
new technology was trialled with them when they were incompetent)
Good medical practice is defined in terms of standards, practices, procedures and
ethical standards of the medical profession in Australia
No Aus clinical practice guidelines exist in the area of withdrawal/ or withholding of
tx (though some guidelines exist within some disciplines)
Considering that the standard of care is now defined in the Civil Liability Act 2003 as
widely accepted by peer professional opinion by a significant number of respected
practitioners in the field as competent professional practice then refusal of tx
made in an AHD appears to depend, to some extent at least, on the discretion of the
medical profession in QLD (though several disciplines in diff fields disagree)
AHD barriers:
o Doctor limitations:
Doctors fear losing control, doctors overestimate pts desires for doctor to make
decisions (not always true that the pt wants us to make the decision),
overestimate pts dislike for making EOL decisions, overestimate pts fears of
upsetting family
Not always right, not born out of evidence that well take this on in a kind,
paternalistic fashion, part of our role to do that in making decisions for the principal
Uncertainties of legal position: perceived potential for litigation
Equation of AHDs with euthanasia (which is illegal): euthanasia by stealth
particularly when pts say I dont want this form of tx
Concerns over time required to complete AHDs (quite a lengthy formal document as
it does come into force later)
Difficulties raising issues of dying (having awkward, critical discussions)
Knowledge gaps eg. EOL law
o Community issues:
Perception that AHDs will be used to limit care (eg. What if I write these in and then
change my mind)
Disruption of D-P relationship
AHD may replace dialogue and may reduce discussion

Evidence of poor uptake in all jurisdictions, incl QLD and not actually registered
anywhere
o Communication issues:
Possible replacement of discussion by formal AHD process
Interpretation, consent and refusal issues
Difficulty anticipating options and progress
Tend to underestimate the acceptability of lower QOL
Lack of time available: structural issue for Medicare
Role of doctors in completing AHDs: AHD must be signed by doctor (recommend usual GP) and the
GP must work through the document with the pt. Doctor states that:
o Has discussed the AHD with the pt
o The pt is not suffering from any condition which would affect their capacity to understand
the things necessary to make the AHD (you make a decision if they have capacity at that
point in time)
o The pt understands the nature and likely effect of the decisions in the AHD
Order of substituted decision-making:
o 1. AHD (if limiting conditions met)
o 2. Adult Guardian for health care matters (if one appointed by QCAT)
o 3. Attorney appointed under Enduring Power of Attorney document for personal matters
o 4. Statutory Health Attorney (if someone appropriate available, usually next of kin and must
be in close and enduring relationship)
>18yrs, culturally appropriate: spouse/ partner non-paid carer (carer allowance/
Centrelink pension for service provider ok) close friend or family
o 5. Office of the Public Guardian (last resort or if someone else is in dispute/ arguments)
Office of Public Guardian
Public guardian: independent statutory officer, not under control or direction of the Minister,
reports to the QLD Parliament once a year, recently established in July 2014 as a result of the
Carmody Inquiry
Guardian regime: rights protection and decision making, not a service provider, not case managers
involvement of the Guardianship system is a last resort
Guardianship Policy Intent (part of Guardianship Administration Act):
o 1. The right to make our own decisions is fundamental to dignity
o 2. This includes the right to make decisions others dont agree with
o 3. Capacity depends on the nature of impairment, type of decision to be made, level of
informal support available
Decision specific (simple vs complex), domain specific (healthcare vs
accommodation), time specific (applies to adults who have fluctuating capacity eg.
UTI vs fixed illness)
o 4. Least possible restriction and interference with decision-making
o 5. Adults have a right to adequate and appropriate support for decision-making (so they can
make appropriate decisions)
Office of Public Guardian has three distinct sections: adult, corporate, child
The public guardians role in relation to adults who have impaired capacity for a matter is to protect
their rights and interests
Health care DOES NOT include: first aid tx, non-intrusive examinations made for diagnostic purposes
(X-ray), administration of OTC medications (dont need consent for these things)
Substitute decision makers can make all decisions the adult could have made for themselves EXCEPT
special health care (only QCAT can consent to these), these include donation of tissue, sterilisation,
TOP, experimental research
Health care DOES include: withholding or withdrawal of life-sustaining measures for the adult if the
commencement or continuation of the measure for the adult would be inconsistent with good
medical practice (must obtain consent to withhold or withdraw)
o Life-sustaining measures: supplants or maintains operation of vital bodily functions
incapable of indept operation (includes ventilation, artificial nutrition/ hydration, cardiopul
resus but DOES NOT include blood transfusion need normal consent process to provide
this)
Some health care for adults with impaired capacity can go ahead without consent: urgent
healthcare, life-sustaining measure in acute emergency, minor and uncontroversial health care
o Life-sustaining measures in acute emergency (times you can withhold/ withdraw these
without consent, all criteria must be satisfied):
1. May be withheld or withdrawn for an adult without consent if the adults health
provider reasonably considers:
a) The adult has impaired capacity for the matter AND
b) Commencement or continuation of the measures would be inconsistent
with good medical practice (eg. futile) AND
c) Consistent with good medical practice, the decision must be taken
immediately (if theres time to make the decision, theres time to seek
consent)
2. Cannot withhold/ withdraw measures without consent if health provider knows
that the principal objections to withholding/ withdrawal (most cases need consent)
o Artificial nutrition and hydration is NOT a life-sustaining measure in an emergency
Objection/ refusal to health care can be overridden if:
o a) The adult has minimal or no understanding of what the health care involves OR why the
health care is required AND
o b) The health care is likely to cause the adult no distress OR temporary distress that is
outweighed by the benefit
Use of Force: a health provider may use the minimum force necessary AND reasonable to carry out
health care authorised under this Act (substitute decision-maker is not able to consent to use force,
needs to be proportionate)
Confidentiality and Privacy
Confidentiality: trusting completely such that one may impart knowledge, believing in and relying
on the knowledge being kept secret ancient idea from Hippocrates that receives some backing
from the common law and legislation
Privacy: more modern and broader concept, more directly based in legislation areas of life
protected from intrusion (information, bodily privacy, image, reputation), loss of privacy in medical
setting usually involves some sort of disclosure of information to others
Hippocractic oath: Whatever, in connection with my professional practice or not in connection with
it, I see or hear in the life of men, which ought not to be spoken abroad, I will not divulge if ought
not to broadcast beyond the pt, I wont, but maybe there are some things which should be divulged
abroad (bit softer than Kottow)
Kottow: Confidentiality is a brittle arrangement that disintegrates if misdirected in pursuance of
other goals and, since it is a necessary component of medical practice, care should be taken to
safeguard its integrity medical confidentiality as an intransigent and absolute obligation, thinks
there are NO exceptions to breaching confidence
Mark Siegler: believes confidentiality in medicine is a decrepit concept investigated that 70 inds in
a large hospital had access to a pts medical records says when you have that number of people
who may access your private medical information, what does confidentiality even mean anymore?
Public interest has an interest in pts information being kept confidential expects health care
services to keep information private
Deontology (duty-based obligation to keep info private) vs Utilitarian calculus (benefits and harms,
can one benefit from a breach of confidentiality?)
o Keeping confidentiality is a deontological duty (doesnt matter what potential benefit may
accrue to us) as well as a beneficent one (respecting autonomy, integrity and identity)
Breach: more than balancing interests (utilitarian) but also a moral harm (deontology) and the
harm to be averted by breaching is always only potential (can never know for certain that a breach is
going to cause a benefit)
Confidence of public in medical profession: confidentiality needs to approach absolute status as
much as possible, else it loses its point
AMA Code of Ethics on confidentiality changes throughout history:
o 1992: In general, keep in confidence information with exceptions: with pts permission,
court demands criticism: not specific enough
o 1996: More exceptions: where the health of others is at risk criticism: no guidelines for
justified breaches, how serious should the risk to others be?, no specificity, moves too far
from absolute status (too many exceptions now)
o 2004 (current): Maintain your patients confidentiality. Exceptions to this must be taken very
seriously, with exceptions: serious risk to pt or another person, where required by law,
where part of approved research or where overwhelming societal interests criticism:
better as more guidance, more complete but still not specific enough and vague terms
From MBA: Code of Conduct for Doctors in Australia (more important than AMA): with exceptions:
required by law or public interest (even more broad here)
o Appropriately sharing information about pts for their health care, consistent with privacy
law and professional guidelines
o Be aware that there are complex issues relating to genetic information careful disclosing
this kind of information (dont give any specific advice)

Protecting confidentiality:
o 1. Disciplinary processes: breach of Code of Conduct unsatisfactory professional conduct
and disciplinary sanctions may be applied, single instance just a reprimand is most likely
o 2. Common law:
Contract: implied term of confidentiality in D-P relationships, requires
demonstration that confidentiality was of serious concern to the pt
Torts: duty of care negligence, requires damage and causation but what
constitutes quantifiable damage for negligence?
No precedents in Australia
o 3. Equity: Breen v Williams judge said that doctors have a duty in equity not to disclose
confidential information with pts consent although this was just in the obiter dicta (common
law and equity remain uncertain bases for the protection of confidentiality)
o 4. Statutes: Privacy Law Act 1988 (Cth) Privacy Amendment (Private Sector) Act 2000 and
in QLD: Information Privacy Act, Right to Information Act, Other Specific Acts
Governments have developed legislation to govern connected areas: privacy
protection, conditions for disclosure of private information (eg. when referring),
freedom of information, access to records
NPPs/ IPPs/ APPs are Privacy Principles that govern all elements of data quality,
security and information handling in light of
Principal purpose: eg. caring for the pt
Secondary purposes: eg. research purposes, divulging information to another entity
like an insurance company strict conditions including consent of pt, written
privacy policies to giving access to health information
Privacy Law:
o Issues during 2000s: hindrance of sharing information (couldnt even tell doctor about your
familys FHx as that would be divulging information about other people we need
allowances for ordinary medical practice had issues for temporary public interest
determination which allowed doctor to retrieve necessary information), use of genetic
information for relatives of research participants, record access issues
o 2012 amendments to Privacy Act 1988: broad as it permitted health situations allowed
exceptions for ordinary medical service provision (eg. FHx), disclosure for research purposes,
genetic threats to relatives and to substitute decision-makers
o QLD has 2 main privacy statutes:
Information Privacy Act 2009: privacy considerations in state public sector
(Queensland Health), access to personal information, right to amend inaccurate
records
Right to Information Act 2009: right of individuals to access information held or
controlled by the government eg. your own hospital medical charts
Others include Hospitals and Health Boards Act 2011 (to do with governance of
hospital sys as well as confidentiality includes medical student behaviour), Public
Health Act 2005
o Access to medical records: not recognised in common law as in Breen v Williams decided
that records were the property of the doctor/ hospital, no right of access by pt required
legislative provision of access now through the QLD statutes we have access and right to
amend records, though records remain the property of the doctor/ hospital
Analogous to confidentiality: limited protection via common law, much more via
statute law
Exceptions to keeping confidentiality:
o 1. Legally mandatory disclosure:
Notifiable conditions under Public Health Act (legal obligation to notify case)
Notifiable conduct under Health Practitioner Regulation Act (breach other doctors
conduct notify relevant medical board)
PSR (eg. overservicing, PSR will be required to look into your written records for your
pts)
Traffic Act on request of police (eg. blood alcohol level), etc
Court orders (subpoena, writ of non-party discovery this one only need to give
specific details, not everything)
Disciplinary matters (eg. doctor being investigated)
Substitute decision-makers
o 2. Patient consent/ implied consent: medical certificates, prescriptions, insurance
o 3. Medical research: need de-identification of data
o 4. Quality assurance

5. Genetics: genetically transmitted disease picked up in a research participant that could
potentially affect their relatives
National Statement 1999 written consent required to tell participants family
members unsatisfactory as couldnt disclose a risk to other family members
National Statement 2007 disclosure allowable without consent now
researcher can disclose info if sig serious threat to life or health, now one of the
broad permitted health situations where disclosure allowed under Privacy Act
o 6. Public interest exception: everything else really, where statutes require breaches and
protect doctors in some cases, no fail-safe guidance as to how to weigh interests
Consider a case of probable infliction of serous harm on another by a patient, eg. pt
HIV +ve continuing to have sexual relations with partner and you dont think theyll
tell the partner you feel obligated to tell partner
No precedent cases in Australia of a duty to warn, but may well be strong grounds to
breach
Cases in US and UK, eg. psychiatric pt warned doctor theyd kill their partner
proceeded to do so, doctor was found to be at fault for not notifying
Legal justification here: specific serious imminent risk of harm to a specific person
likely to be reduced by disclosure (breaching confidentiality), minimal disclosure
necessary to avert risk to appropriate authority though uncertainty prevails
Confidentiality and privacy in age of IT: Healthcare Identifiers Act 2010 and Personally Controlled
Electronic Health Records Act 2012 unique number identifiers for pts, providers, secure e-records,
improve safety, reduce duplication costly electronic health record schemes have been abandoned
in the UK and postponed in the US
o
Notification: Clinical, Public Health and Ethical and Legal Dimensions
Some are voluntary, others are mandated by all sorts of laws

Range of doctors notification obligations include child abuse, notifiable conditions under Public
Health Act, cancer, perinatal statistics, blood alcohol, coroners cases, mandatory notifications of
health practitioners
Voluntary notifications: not governed by law so we have discretion/ choice
o Adverse drug reactions: we are incentivised/ encouraged to advise the Adverse Drug
Evaluations Committee
o Pap smear register: voluntary inclusion of clinical and identifying information by pt would
you like your details on the pap smear register?
o Medical fitness to drive: not a legal requirement for doctors in QLD

Notifiable conditions: a medical condition which is a significant risk to public health
o Doctors and hospitals must notify: some clinical diagnosis and some provisional diagnosis
notifiable conditions (these are so serious we want to know if only just a hypothesis, include
dengue, CJD, Hib, meningococcal disease)
o Pathologists must notify: pathological diagnosis and pathological request notifiable
conditions (eg. why are you requesting Bat Lyssa virus??)
o Public Health Regulation 2005 QLD
Child abuse/ neglect: mandatory reporting of reasonably suspected abuse or neglect (you are
protected against legal action as long as you are reporting on reasonable grounds) Department of
Child Safety
o Offence if you DONT report reasonable suspicion, protection from liability and protection of
confidentiality
Other obligatory notifications: births, deaths (all registered automatically in hospital), immunisation
register (including adverse events with Incentive programs), reportable deaths (Coroners Act 2003),
drug dept persons of controlled drugs (registered with Drugs of Dependence unit), measuring blood
alcohol (Transport Operations (Road Use Management) Act with exception that you need to
medically tx first)
o It is lawful for a health care professional to take a specimen of a persons blood even though
the person has not consented to the taking
Medical fitness to drive: no legal obligation in QLD though recommended by State Coroner BUT legal
protection from liability and disciplinary action for doctors who notify unfitness in good faith and on
reasonable grounds
o AND obligation on license holders to notify QLD transport of a medical condition that affects
their ability to drive (pt is required to report it, and will incur a fine of up to $4500 if they fail
to report it)
o Possible that a health profession could be held negligent (esp in case of epilepsy) if pt not
adequately informed of driving risk, so as not sufficiently informed to take action themselves
to notify Transport Department so negligence for not enough disclosure
Notification: protect persons from notifiable conditions through mechanisms that provide an
appropriate balance bw the health of the public and the right of inds to liberty and privacy
balance disease containment with infringements on liberty, encourage ind responsibility to minimise
community risk, use contact tracing powers ethically, statutory protection to those who must break
confidences by making notifications
o Protection of community from foreseeable harm (infectious disease): prevent, control and
reduce disease
o Protection of community from foreseeable harm (other areas): establish data registries (eg.
for perinatal conditions, cancer), establish causes of death and recommend preventive
improvements, prevent child abuse and neglect, minimise adverse efx of drugs, prevent road
accidents
Public Health Aspects of Notifiable Conditions
Some of these are immediate notifications (for some medical conditions): notifiable immediately
after completing the clinical examination, receiving the request or obtaining a result and include
acute flaccid paralysis, lyssavirus, legionellosis, etc
You are not in breach of confidentiality by divulging information requested under the provisions of
the Public Health Act 2005
Controlled notifiable condition: substantial impact on public health, where the ordinary conduct of a
person with the condition is likely to result in transmission to someone else transmission will
result in lt serious deleterious consequences (some are also Quarantine Diseases, Cth Quarantine
Act and include cholera, lyssavirus (rabies), SARS, plague, smallpox)
Child health Contagious conditions: directions about attendance of children at school may
require exclusion of children from educational facility if have or reasonably suspected of having a
contagious condition as per prescribed period
Contact tracing officer can request: date of onsent of disease, name, address, sex, occupation, name
and address of any person who may have transmitted the disease or to whom the person may have
transmitted the disease, information about the circumstances in which the person may have been
exposed, etc #everything
Privacy Act:
o s75: A person who gives information requested under this section who would otherwise be
required to maintain confidentiality about the information a) does not contravene the Act,
oath, rule of law or practice by giving the information and b) is not liable to disciplinary
action for giving the information
o s75: The person cannot be held to have a) breached any code of professional conduct or b)
departed from accepted standards of professional conduct
o Patient:
s99: Explain that the information is needed to attempt to prevent/ minimise the
spread of a notifiable condition
s100: Must comply with contact information requirement unless has a reasonable
excuse (this does not include concern that it might incriminate the person, eg. HCV
sharing drugs, public health need to know people sharing to give them prophylaxis,
police dont need to know)
o Public Health Unit:

s77: A relevant person must not, directly or indirectly disclose confidential
information
s78: This does not apply if disclosure of the confidential information by a relevant
person is authorised under an Act or other law (eg. Director General all the way at
the top is allowed to appear in newspaper, but public health units are not allowed to
authorise this kind of thing)
Approach to those whose behaviour may constitute a public health risk:
o Coordinated counselling, education and support
o Intensive counselling, education and support
o Chief executive may apply to magistrate for an order for a person which has a controlled
notifiable condition
o Public Health Act 2005 Provision for removal and detention of a person suffering from a
controlled notifiable condition (initial examination order, behavioural order, detention order
up to 28 days, eg. HIV +ve person must practice safe sex, must disclose their status)
Adverse Events Following Immunisation: anaphylaxis, common minor adverse rxns Reporting
Form available from QLD Health Immunisation Program
What is done with notifications: stopping disease transmission, mapping disease transmission,
analysis of disease trends and patterns, identifying disease transmission clusters
Notifiable Cancer Registry
Register of all new cases of cancer and deaths in QLD, operated under the Public Health Act 2005
and managed by Cancer Council Queensland under contract from Queensland Health (QH owns all
data and equipment)
For each primary cancer: as much info as possible
Cancers collected: all invasive cancers, in-situ cancers, benign CNS tumours, cancers of uncertain
behaviours
Registry data protected under privacy legislation, txed as strictly confidential (staff sign
confidentiality agreements, restricted access to non-staff, computer security), depends on numbers
in a suburb (if small, need more approval compared to a larger suburb as easier to identify)
Public Health Act 2005 allows identifiable data to be released to researchers through a strict
approvals process
Doctor responsibilities: no obligation on doctors to notify cancer, notification is legally required from
pathology labs, nursing homes and hospitals (use medical coders, all automated), doctors are only
required to supply information to the Cancer Registry if requested
Involuntary Assessment and Tx: Clinical and Ethical Perspective II
QCAT role for people with impaired decision-making capacity: balance their right to an indept role in
decision making and their right to adequate and appropriate decision-making support
Mental Health Act 2000 QLD:
o Involuntary assessment: non-consensual for up to 3 days assessment
o Involuntary tx: non-consensual, inpatient or community
o Recap:
a) person has a mental illness
b) requires immediate tx

c) available tx at an authorised mental health service
d) imminent risk to themselves or others OR likely to suffer serious mental or
physical deterioration
e) no less restrictive way
f) lack capacity OR unreasonable refused tx
Involuntary Treatment Order: must be accompanied by tx plan outlining proposed tx, tx
frequency, method and place, rehab and other services, the frequency of reviews tx plan
must be developed/ discussed with pt
Mental Health Review Tribunal: indept statutory body established under this Act, primary
purpose is to review the involuntary status of persons with mental illnesses

Does not provide authorisation for non-consensual tx EXCEPT for mental illness (they still
have capacity to make decisions on healthcare for matters not related to their mental
illness)
Mental illness and violence: there is an association BUT most mentally ill are not violent, usually
mental illness is just COMORBID with shared risk factors for violence, though active Sx increase risk
o Imminent risk: factors including static (historical), dynamic (current) and protective factors
Likelihood = static
Dynamic = imminence
Magnitude
o
o
Commercialisation of Medicine, Medical Advertising and the D-P Relationship
Medicine is now very much under the umbrella of Competition and Consumer Law and Commercial
considerations
Corporatisation: we have moved away from the solo practitioner era now group practice, big
commercial medical operations, same for pathology and imaging, this was encouraged by gov
o 1999: Cth incentives for solo practices to amalgamate $$$
o 2000: KPMG owned 35% Perth GPs attractive to GPs: goodwill, income, flexibility, less red
tape

2005: ability of solo GPs moving to corporate make more money, incentivisation of GPs
Item number exploitation? Eg. care plans (chronic, complex, mental health)
o Alleged problems:
Reduced practitioner independence
Vertical integration: have to observe more corporate rules? (eg. throughput, referral
rates, overservicing)
Patients vs shareholders vs public funder?
Reduced numbers of GPs for rural areas GPs moving to the city
Reduced home visits, patient access and choice
Consumer model vs fiduciary D-P traditional relationship
o Conflicts of interest:
Clinical practice guidelines: panel members with connections
Ghost writing by drug companies/ professional writers doctors linked to
commercial interests when they should take a very indept stance on tx
TV advertisements with doctors: off-on-off again
2005: Ban removed by TGA Advertising Code Council said there was
consumer benefit
2006: AMA revised Code of Ethics to oppose commercial endorsements
(provoked by medical student who wrote an article in the Medical J Aus
Should doctors appear in advertisements?)
2007: TGA Code amended and moved back to more traditional position
endorsements phased out now doctors are banned from appearing in ads
o In many ways, the profession is much more business-minded and corporately structured
now eg. Medical Institutes cold-calling previous pts (trying to develop a perceived market by
going to them)/ medicalisation/ disease-mongering
History of commercialisation:
o 18th Century: duty of care/ trust/ commitment, all fiduciary and based on authority of
science, and not on authority of marketplace
Commercial medicine perceived to be incompatible with best interests
Truth-telling, confidentiality
Problems at the time: no uniform entry into medicine, no medical licensing, self-
interest could be primary (when should be about care of the pt), contractural D-P
relationship
th
o 19 Century: developing scientific basis for medicine and formalised medical education,
organising profession and developing professional esteem
Profession set itself up as a non-commercial, highly special, organised outfit and set
itself aside from the more commercial aspects of things
Medical licensing was a social contract
Rejection of advertising
D-P contracts OR waiver of fees for poor
o Earlier 20th Century: scientific developments + post-war gov started funding healthcare
with development of National Health Service, universal insurance coverage for everyone
Professional self-regulation
Restricted competition and restricted advertising
Fee for services: doctors as individual pt advocates
o
All nice and dandy:

Later 20th Century: healthcare became more costly ($$$ insurance, fee-for-service, science
got better) strain on public funding (insatiable demand for having the best) gov need
to reign in expenditure (need incentives to reduce services, decrease providers, fee
restrictions, medical student number restrictions though this has since been lifted)
Incentives to limit marginally beneficial tx
Best interests/ reasonable care acquire a cost component
Cost-benefit arrangements: PBS/ competition policy
GP gatekeeping, hospital waiting lists
Medical advertising rules were relaxed here
All this was not explicitly acknowledged^

Deregulation and advertising:
o Mutual Recognition Act 1992: mutual registration of health professionals across states
(National Registration Scheme as before this Act you had to get other states to recognise
your medical degree), reduces occupational regulation to enhance flexibility, repeal of some
registration acts eg. Speech pathologists
Now we have National Registration and Accreditation Scheme with AHPRA
o Competition Policy Reform Act 1995: National Competition Policy Australian Competition
and Consumer Commission (ACCC) established, Competition Code includes health
professionals (huge change for the profession)
Consumer choice means a lot more now unless there is public interest justification
Implications for education and training eg. surgeons
Advertising: outlaws various practices which had previously been accepted as
normal
Now we have the Competition and Consumer Act 2010
Advertising:
o Prior to 1997: severe restrictions med profession made a deal with society Were not
going to be business-like, were going to put the interests of the pts first in front of our
financial and other interests, in return for high social status and good living tremendous
limits on what you could advertise about as profession set itself up as non-commercial

1997: by laws of Medical Act 1939 consumer changes, saw relaxation of advertising
though still largely restricted health sector advertising
o 2001: Medical Practitioners Registration Act 2001 more relaxation of advertising, you
could advertise your services with exceptions:
Not false, misleading, deceptive
No discounts, gifts, or other inducement to attract a person to use the service,
unless the ad also states the terms and conditions of the offer
No endorsements or testimonials
No disparagement of other professionals
No ads for services known to/ likely to cause harm
No ads for expertise not actually held
o (current) 2010: Health Practitioner Regulation National Law Act 2009 similar exceptions
as well as:
No ads that create an unreasonable expectation of beneficial tx ACCC will follow
up and take action against any corporations who break any of these advertising
exceptions
No ads that directly or indirectly encourage the indiscriminate or unnecessary use of
regulated health services (avoids overmedicalisation)
Restrictions deleted from previous Medical Practitioners Registration Act 2001:
No disparagement of other professionals
No ads for service known to/ likely to cause harm
No ads for expertise not actually held (this now covered by false/ misleading
clause)
Competition and Consumer Law benefits:
o Cost efficiencies
o Reduction in medical monopolies (spread healthcare to allied health markets as well
make more competitive so medicine doesnt monopolise healthcare)
o Better information provision for pt decision-making
o Advertising reduces medical paternalism
o Protection against unfair trading
Competition and Consumer Law problems:
o Regulatory mechanisms required to protect pt against power differences
o Dominance of commercial over altruistic values medical care becomes a product
o Commercial practices encourage increasing demands, widening scope of medicine (med
shouldnt be a market model trying to increase demand)
o Advertising creates demand of wants instead of needs
o Market models create inequities
o Clinical decisions made by tertiary payers: shift in clinical autonomy
o Even legal advertising brings profession into disrepute
o
Commercialisation of Medicine
We should regard medicine primarily as a scientific vocation although cannot divorce from the fact
that we are here to make a living as well
Competition and Consumer Act (CCA) prohibits anti-competitive arrangements bw competitors
has impacts on commercial behaviour in the health sector

Case 1: ACCC took the Royal Australiasian College of Physicians and Radiologists to court as
the College wasnt allowing for Townsville hospital to put out tenders for cheaper
radiologists Australia-wide ACCC won and the College had to amend their rules Standards
for Accreditation of Nuclear Medicine Practices
Prior to 1995, most medical associations had agreements/ restrictions to stop advertising by their
members these anti-competitive agreements for mostly backed by State legislation that
prohibited advertisements by medical practitioners
o But people think that ads represent a free enterprise sys by providing information,
facilitate consumers efforts to identify produce and make choices low entry barriers for
new competitors must now price competitively
o Now we can advertise as long as it is truthful (and previous stipulations) power to the
consumer
ACCCs consumer protection work has impacted on some commercial behaviour within the health
sector
ACCC is an enforcement agency, looks at complaints
Ethical challenge of separating commercial interest from pt welfare
o
Patient Safety
Identify the role of human factors in adverse incident prevention think Swiss Cheese Model
where all the holes have to align for a failure to occur

Active measures the ind practitioner can take to minimise harm and maximise safety
Safety: a state in which risk has been reduced to an acceptable level (ambiguous)
Dimensions of quality: 1. Safety, 2. Efficiency, 3. Effectiveness, 4. Appropriateness, 5. Pt experience,
6. Equity/ Access
Dimensions of pt safety:
o 1. Pt experience: anecdotal story, do they feel safe? What are proxies to measure this?
o 2. Extent of harm: statistics, this is quantitative harm experiences and is a statistical concept
Cause of pt safety problems:
o You and me: to err is human
We lack awareness of risks of healthcare

The same error can have diff consequences
Errors are not intrinsically bad or morally wrong BUT healthcare people expect
perfection of themselves AND colleagues
Our current institutional culture often blames the ind, without looking at the wider
picture
Fatigue Hungry, Angry, Late, Tired
o System: v common, not designed with safety in mind
Vulnerable system design and the system is only as safe as it is designed to be
System redesign can trap errors before they cause harm
Reporting and analysis of adverse events is a key part of safety sys
o Incompetent doctors: v rare, usually failure to act rather than failure to know
o Bad doctors: extremely rare, hard to detect, v public and shocking when revealed
Common contributing factors to adverse events: communication failure, poor teamwork,
professional culture, being fatigued
Healthcare culture can be a blame culture:
o Healthcare systems that view errors as failings which deserve blame
o Corrective actions that focus on inds
o Organisational culture that values production over safety does not support safety
Improvements that are evidence-based:
o Culture of safety: attitudes, behaviour
o Safety Management System: Reporting and analysis focussed on learning
o Teamwork and communication
o Human Factors Engineering
o Regulation
We need to observe the clinical workplace through a systems lens
Boundary Crossings: Ethical, Legal and Disciplinary Aspects
Case 1: Doctor made a boundary violation by having a sexual relationship with a vulnerable pt whilst
he was going through his own psychiatric and familial problems complexity, vulnerability (of pts
particular circumstances, doctors particular circumstances), departure from professional standards
Consent:
o To treatment: pt authorises what would otherwise be a boundary violation
o To a sexual relationship: pt authorises what IS a boundary violation

Good Medical Practice: Professional boundaries integral to a good D-P relationship, and involves
o Maintaining professional boundaries
o Never using your professional position to pursue a sexual, exploitative or other
inappropriate relationship with anybody under your care (includes those close to the pt, eg.
carer, guardian or spouse)
o Avoiding expressing your personal beliefs to your pts in ways that exploit their vulnerability
or that are likely to cause them distress
o Specific guidelines on sexual boundaries have been developed by the MBA under the
National Law: trust, power imbalance, loss of objectivity, pt safety the person in power
has the responsibility to maintain appropriate boundaries, consent does not justify crossing
the boundary
o Reporting obligations
Health Practitioner Regulation National Law Act 2009: notifiable conduct includes
o Practitioner engaged in sexual misconduct in connection with the practice of their profession
o Placed the public at risk of harm because the practitioner has practiced in a way that
constitutes a significant departure from accepted professional standards
Rule utilitarianism: even if there are safe boundary crossings, dont be tempted (slippery slope)
Boundary Violations in the Therapeutic Relationship
The health professional is being paid for a service fiduciary relationship, with an inherent power
differential, and tx must involve the creation of an atmosphere of safety and predictability for the pt
Therapeutic frame:
o Absence of physical contact other than handshake, or clinical examination
o Circumscribed location and length of appts
o Declining lavish gifts
o Avoidance of social or financial relationships which might interfere with the D-P relationship
o Relative asymmetry of self-disclosure
Professional boundaries DO NOT mean rigidity or remoteness
o Boundaries allow the demonstration of warmth, empathy and spontaneity within a climate
of safety
o Difference bw being friendly and a friend
Should assume that all clinicians are at risk of violating boundaries
o Increased vulnerability in the face of life stressors: divorce, death of a family member,
malpractice litigation, medical error
o Sexual boundary violations stats: 1-12% of male therapists and 0-3.1% of female therapists
Common boundary crossings:
o Low or no fee: may give a covert message that something is expected in return,
disempowers the pt who feels they cannot express dissatisfaction, devalues the tx being
offered (cf. open discussion and negotiation of fee)
o Accepting gifts/ engaging in social contact: may represent an unconscious bribe by the pt,
controlling tx so that unpleasant or difficult issues are not raised, undermines the capacity of
the doctor to raise difficult issues
o Self-disclosure: occurs in 15.4% of routine office visits, distorts the nature of the professional
relationship, pt may try to protect the vulnerable doctor from their own probs
Think: is it for the pt or for me?

Some discussion about mutual interests may help to establish rapport
Prevention:
o Literature suggests that in many cases non-sexual boundary violations precede sexual
boundary violations
o Attention to these minor crossings may prevent descent on the slippery slope
o Be aware that professional isolation is a key factor in the development of boundary
violations
o Attention to personal relationships having non-work things are v good
o Personal reflection on practice recognition of vulnerability
Patient and Professional Concepts of Illness, Causes and Meaning
Medical records purposes: continuity, efficiency (prevent duplication), medico-legal document,

narrative of a distinct person the structure of record keeping reflects and may even determine
the kind of care given
o History taking: listening, translating, medicalising, objectifying, labelling, reducing
o Narrative: making sense in pts terms
o The editorial function of doctors in medical consultations involves finding a mutually
acceptable form of text by which to objectify as far as possible not only the biomechanical
but also the values assigned by the pt to the constituents of the experience of illness
Patient/ person and disease/ illness recognise the experience of illness and incorporate that
perspective into decision-making
New section of medical record: Ethical concerns ?
o Ethical concerns as routine part of diagnostic workup
o Making pt values and value structure of decision-making more explicit
o Or Ethical checklist section of record prompt to confront ethical issues that may be
overlooked, similar to WHO surgical checklist
o

Pt access to records: Privacy Act 1988, Privacy Amendment Act 2000 (Private Sector), Information
Privacy Act 2009 (Public Sector)

Ashley - S Ethics Notes Y1Y2

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Ashleys

Ashley Leong 42648532

MBBS I, Semester 1 ....................................................................................................................... 5

Ashley Leong 42648532

MBBS II, Semester 1 .................................................................................................................... 89

MBBS II, Semester 2 .................................................................................................................. 143

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Ashley Leong 42648532

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Ethics Review Pre-Midsem

Introduction: Ethics, Bioethics and Philosophy of Medicine

Body (obey physical laws,

There is a dualistic nature of us: very intuitive

Ashley Leong 42648532

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o Bioethics and biolaw

Introduction: Law and Human Rights

Conventions: etiquette, norms, customs

Two broad legal traditions

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How we get our values

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Lower level values are revised more readily

Medical Practice & the Law

Think first 1. Criminal/civil law 2. Professional conduct (suspension/de-registration)

Ashley Leong 42648532

Feminist jurisprudence: the legal person is male

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Maintain health of community (notifications, reporting to courts)

Duty: Formalisation of moral consensus

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o Normative causation (appropriate for scope of liability to extend to harm)

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Patient care = beneficence (feeling good about yourself)

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Student Behaviour and UQ Integrity and Misconduct

9 categories for expectations of the school

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Professionalism, Accountability and Self-Regulation

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Health Practitioner Regulation (guy from Aus. Health Practitioner Regulation

Council of Australian Governments (COAG) commissioned Productivity Commission report (2006),

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Death in Australia ABS data

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Concepts of Disease, Health and Illness

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Disease-mongering: creating new diagnostic categories to develop new drugs $$

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Interactions with Colleagues

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Medical Culture and Medical Students

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Ethics Review Post-Midsem

Ethical Theories and Medicine

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Examples: Applied deontology, utilitarianism, principlism, casuistry (resolving of moral problems

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Rationing of finite medical resources: demand, increasing