Common Law And Legislation Stated Essay

Question:

Discuss about the Common Law and Legislation Stated.

Answer:

Introduction:

In Australia, both common law and legislation stated the rights of patients for receiving the health care from doctors, hospitals and other institutions that are providing health care. There are three types of rights which are given to the patients:

  • Patient has right to get medical treatment with reasonable care and skill from the health care provider.
  • Patient has right to decide whether he want to undergo for the medical treatment or not after receiving the information related to medical treatment and risk involved in that treatment.
  • Right to keep the information confidential that is related to medical treatment[1].

In this paper we discuss the accuracy of the statement that is “using the law to successfully gain access to medical treatment is limited and typically likely to be unproductive”, and also any law related to medical treatment stated by common law or human right commission in Australia.

Health care in Australia:

In Australia, there are number of peoples who get benefit from the policy of medical treatment, and it is the right of the patients to get medical treatment. It is the duty and obligation of medical practitioners to ensure that rights of patients are upheld. There are large numbers of people who get affected because of absence of medical treatment. According to the report of world health organization Australia has the highest error related to medical treatment in the world, and following data is presented in the report:

  • In Australia, almost 18000 people die because of the medical negligence.
  • Almost 50000 people suffered medical injury which is permanent in nature because of the medical negligence in Australia.
  • Due to medication errors almost 80000 people get hospitalized annually[2].

However it is important to know that not all the medical errors are negligent, and patient cannot sue for compensation just because outcome of his treatment was not good. A medical error is considered as medical negligence only when health care practitioner is failed to take reasonable care. We can understand this with the help of case law that is Bolam v Friern Hospital Management Committee [1957]. In this case, Mr. Bolam sued Friern Hospital committee for compensation for not providing the information related to treatment and being negligible. This case lays down the rule that is known as the Bolam test to determine the proper standards of reasonable care in negligence cases related to skilled professionals. This rule stated that if doctor reaches the standard of responsible body of medical opinion then he is not negligent in the case.

Common law in Australia provide many laws related to rights of patients such as Consent to Medical Treatment and Palliative Care Act 1995, rights of people with mental incapacity is regulated by Guardianship and Administration Act 1993. On the other hand, government of Australia also issued Australian Charter of Health Care Rights. This charter is issued by the commission in 2007-2008. The development of this charter was done with care and after consulting the rights of patients related to health care services. This charter is introduced by the ministers of health as the Australian Charter of Healthcare Rights in July 2008, and it is used across the country. This charter is applicable in all the public and private hospitals of Australia, general practice conducted in Australia, and other community environments. The main purpose of this charter is to make the common understanding of the rights of people related to receive health care to the patients and their families, consumers, carers and service providers[3].

Following are the rights available to patients in Australia:

Right to get basic health care Service and Medicare- according to the human right commission in Australia, Medicare organizations are obliged to provide free and subsidized health care to a patient, and this health care includes treatment provided by practitioners, dentists, and allied health practitioners in some specific situations. These facilities are available only for those people who reside permanently in Australia, citizens of Australia and New Zealand, holders of permanent visa, and in some situations people who applied for permanent residence visas. It is the general duty of hospitals to provide medical treatment to the patient who is under emergency medical condition. Entitlements related to Medicare also includes free treatment and accommodation in public hospital as a public patient, and subsidiary in medicines through the Pharmaceutical Benefits Scheme.

Doctors have no right to refuse the treatment of patients on the basis of any improper reason and they cannot discriminate their patients on the basis of sex, race, cast and on any other invalid reason.

This rule is identified in the case Court in Roberts v. Galen of Virginia, Inc., 525 U.S. 249, 119 S. Ct. 685, 142 L. Ed. 2d 648 (1999)[4]. In this case, Jane Roberts who is guardian of Johnson filed this suit under § 1395 dd(d) of EMTALA and stated that defendant violate § 1395 dd(d) of EMTALA. Court held in this that plaintiff was failed to show that decision of hospital to authorize the transfer was caused by any improper motive such as race, sex, and cast.

Patients who are accessing their right are not able to choose doctor and hospital, but patients covered under private insurance are able to choose their own doctor, surgeon or hospital. Medicare also provides private hospital subsidies in some cases. It must be noted that people who are eligible to get medical treatment in Australia is also eligible to get medical treatments in the country where Australia has health care agreement.


Presently Australia has agreement with almost eleven countries such as UK, New Zealand, Ireland, the Netherlands, Italy, Malta, Sweden, Finland, Norway, Belgium, and Slovenia[5].

There are some situations in which health care provider reject to provide expensive or experimental treatment. The Australian Human Rights Commission (the Commission) plays important role in protecting and promoting the medical rights of their citizen. The Commission framed many policies related to medical treatment, and provide following rights to their citizens:

  • Easy access to basic health care services and medical treatment to the citizens.
  • Provide concessions on medicines and other expenses incurred on health.
  • Payments made to patients to help them in meeting their treatment costs.
  • Provide facility of private health insurance.
  • Preventive care.

Doctor’s own duty of care towards their patients, and this is duty owned by medical practitioner towards their patients for taking reasonable care. There are some cases which explain it well such as Strempel v Wood [2005] WASCA 163 [28][6], in this case McLure JA stated that if patient pay fees to the doctor and consult with him then doctor own duty of care towards patient.

Informed consent- it is necessary for the health provider that he gives all information to the patient related to his medical treatment and risk involved in the treatment before providing that treatment to the patient. If patient agree to the treatment then it is called consent to treatment. According to this requirement it is the duty of health care provider that he gives all related information to the patient so that patient can take informed decision[7]. This right is upheld by the Supreme Court of NSW and the Supreme Court of Western Australia in two cases that is Hunter & New England Area Health Service v. A [2009] NSW SC 761[8] , this case highlights the conflicting interest related to right of self determination of competent adult. In other words it determine the right of competent adult to control the one’s own body, and also interest of the state in protecting the lives and health of citizens. Second case is Brightwater Care Group (Inc) v. Rossiter [2009] WASC229[9] in which Supreme Court of Western Australia supports the decision of first case.


Common law of Australia state that all the adults who are competent can accept or refuse the treatment, and if informed consent of patient is not present then it may result in legal consequences for doctor or medical practitioner. Informed consent means consent given by patient after getting all the information related to treatment and also warning for the risk involved in treatment. We can understand this with the help of case law Rogers v Whitaker (1992) 175 CLR 479[10]. In this case, the main issue was whether doctors are failed to advise and give warning of the risk involved in operation to the patient.

The next case was filed after 20 years that was Sidaway v Governors of Bethlehem Royal Hospital [1985] AC 871[11]. In this case, surgeon appointed by hospital operates the spinal column of plaintiff and he failed to warn the plaintiff about the risk associated with operation that was damage to her spinal cord. After the operation the spinal cord of plaintiff was damaged. Court applied Bollam rule in this case.

Common law also stated that in some situations individual is not able to give informed consent or consent is not required such as in case of emergency. However there are exception in case of children in which High Court held that parents has right to authorize the treatment. The rule related to competency of minor consent is developed by the English House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112[12], and this rule is approved by the High Court in Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218[13].

In Australia, there is legislation which permits the medical treatment to child without the consent of parents such as blood transfusion is allowed without the consent of the parents if life of the child was in danger. Section 20A of the Children (Care and Protection) Act 1987 (NSW) can be understand with the help of case law Dalton v Skuthorpe (unreported decision of Supreme Court of New South Wales, 17 Nov. 1992, No. 5094 of 1992)[14] in this case, court held that life of the child is in question therefore blood transfusion is valid without the consent of parents of the child. One more case law is there to understand this point that is Marchant v Finney (unreported decision of Supreme Court of New South Wales, 31 July 1992, No. 3599 of 1992)[15].

Importance of section 20A is stated in case Birkett v Director General of Family and Community Services (Unreported decision of Supreme Court of New South Wales, 3 Feb. 1994, No. 3161 of 1991), and the decision of this case is given on the basis of Rolands v Rolands (1983) 9 Fam LR 320[16]. In northern territory of Australia, Emergency Medical Operations Act 1973 (NT) allowed the health care providers to operate the child in case of emergency[17].

Some parents object the blood transfusion on the basis of religion, but Court’s have power to overrule these kinds of objections raised by the parents in the interest of the life of child. However, such situations are decided by the court in case Re S (a minor) (medical treatment) [1993] 1 FLR 376, a 4 ?[18]. In this case, the parents of child are Jehovahs' Witnesses and all the family members in their medical records veto the blood transfusions. In this case court held that parents has right to refuse the blood transfusion of their child if there is no risk on the life of the child. Judge further stated that parents or guardians of child can give importance to their religious beliefs if risk on child’s life is negligible.

In case, Re O (a minor) (medical treatment) [1993] 2 FLR 149[19] court refused the decision of the parents to avoid blood transfusion just because they are Jehovahs' Witnesses. However, in case Re E (a minor) [1993] 1 FLR 386[20] it is established the unwillingness of court to follow the religious objections for the safety and health of children’s.


If competent adult refuse the blood transfusion then court did not consider the health of victim but they consider the validity of refusal. In case, Malette v Shulman [1991] 2 Med LR 162, a 57[21] court held that right to refuse the treatment is the right of the patient on his own body. There is one more case Re T (adult: refusal of medical treatment) [1992] 4 All ER 649[22] in which court stated that if patient is not capable to give refusal then court overrule the objection of patient for blood transfusion.

Therefore, courts overrule the objections of parents on the basis of religion to safeguard the health and care of child but in case of adult if refusal is valid and stated in advance then such refusal must be respected.

Conclusion:

In Australia, there are many cases which provide enough guidance on the medical law of Australia, and rights of patients to get medical access in hospitals. Guidance provided by case laws is sufficient to regulate the medical law in Australia. Decisions provided by court and tribunals are very important because these decision are made under the shadow of law. All these cases are different from each other, and they have unique circumstances, and these factors help the medical practitioners in providing treatments to competent and incompetent adults or minors. Therefore, statement is not correct that using the law to successfully gain access to medical treatment is limited and typically likely to be unproductive.

References:

Court in Roberts v. Galen of Virginia, (1999) 2d 648 (1999).

moran v. Rush Prudential HMO, (2002)2d 375.

Hunter & New England Area Health Service v. A [2009] NSW SC 761.

Brightwater Care Group (Inc) v. Rossiter [2009] WASC 229.

Rogers v Whitaker (1992) CLR 479.

Roberts v. Galen of Virginia, Inc., (1999) 525 U.S.

English House of Lords decision in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112.

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218.

Dalton v Skuthorpe (unreported decision of Supreme Court of New South Wales (1992), No. 5094 of 1992.

Marchant v Finney (unreported decision of Supreme Court of New South Wales) (1992) No. 3599.

Rolands v Rolands (1983) 9 Fam LR 320.

Re S (a minor) (medical treatment) [1993] 1 FLR 376, a 4 ?.

Re O (a minor) (medical treatment) [1993] 2 FLR 149.

Re E (a minor) [1993] 1 FLR 386.

Malette v Shulman [1991] 2 Med LR 162, a 57.

Re T (adult: refusal of medical treatment) [1992] 4 All ER 649.

Strempel v Wood [2005] WASCA 163 [28].

Sidaway v Governors of Bethlehem Royal Hospital [1985] AC 871.

Legal services commission, ‘Patients rights’ (2016) < 27 December 2016.

Medical Negligence Solicitor Australia, ‘medical negligence in australia - what every patient should know’ < accessed 27 December 2016.

AHRC, ‘Your right to health’ (2016) < accessed 27 December 2016.

ALRC, ‘Review of State and Territory Legislation’ (2016) < accessed 27 December 2016.

Australian Commission on safety and quality in Health care, ‘Australian Charter of Healthcare Rights’ (2016 ) < accessed 27 December 2016.

Pei-Tee-King, ‘REFUSAL TO CONSENT TO TREATMENT ON RELIGIOUS GROUNDS’ < accessed 27 December 2016.

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