Understanding patient rights dignity of risk open disclosure

Understanding patient rights, dignity of risk & open disclosure March 2020 Alison Choy Flannigan, Partner, Leader, Health & Community smarterlaw. com. au © Hall & Wilcox Document ID 23073319

Introduction § Duty of Care § Patient rights & dignity of risk (consumer dignity and choice) § Professional Codes of Conduct and registration responsibilities § Capacity § Open disclosure § Risk assessment § Scenarios 2

Duty of care and negligence § Duty of care is relevant to providing aged care services to clients and also warning of risks to clients when they are making choices as to the services which they receive § What is negligence? § Negligence means a failure to exercise care and skill § In an action for negligence, the plaintiff must prove that: • the defendant owed him or her a duty to take reasonable care • the defendant breached that duty by failing to take reasonable care • the defendant’s breach of duty caused the injury or damage suffered by the plaintiff; and • the injury or damage suffered was not too remote a consequence of the breach of duty 3

Duty of care and negligence § What is the duty to warn? The duty to warn is identified as extending to “material risks” which may attend a proposed treatment: the risk is “material”, relevantly for present purposes, if it is a risk to which a reasonable person in the position of the patient “would be likely to attach significance in choosing whether or not to undergo a proposed treatment” Wallace v Kam (2013) 250 CLR 375; Rogers v Whitaker (1992) 175 CLR 479 Except in cases of emergency or necessity, all medical treatment is preceded by the patient’s choice to undergo it which choice is in reality, meaningless unless it is made on the basis of relevant information and advice 4

Duty of care § What is peer professional opinion? o This will depend upon expert opinion at the time, taking into consideration the circumstances of the resident/patient and industry standards smarterlaw. com. au 5

Patient rights & dignity of risk § An adult patient has the right to make decisions about his or her own body and to have dignity of risk (consumer dignity and choice) 6

Patient rights and dignity of risk Code of Conduct – Nursing and midwifery Board of Australia 2. 3 Informed consent is a person’s voluntary agreement to healthcare, which is made with knowledge and understanding of the potential benefits and risks involved. In supporting the right to informed consent, nurses must: a. support the provision of information to the person about their care in a way and/or in a language/dialect they can understand, through the utilisation of translating and interpreting services, when necessary. This includes information on examinations and investigations, as well as treatments b. give the person adequate time to ask questions, make decisions and to refuse care, interventions, investigations and treatments, and proceed in accordance with the person’s choice, considering local policy c. act according to the person’s capacity for decision-making and consent, including when caring for children and young people, based on their maturity and capacity to understand, and the nature of the proposed care d. obtain informed consent or other valid authority before carrying out an examination or investigation, provide treatment (this may not be possible in an emergency), or involving people in teaching or research, and e. inform people of the benefit, as well as associated costs or risks, if referring the person for further assessment, investigations or treatments, which they may want to clarify before proceeding.

Patient rights and dignity of risk Code of conduct for nurses – Nursing and midwifery board of Australia Value Nurses provide safe, person-centred, evidence-based practice for the health and wellbeing of people and, in partnership with the person, promote shared decision-making and care delivery between the person, nominated partners, family, friends and health professionals. Person-centred practice is collaborative and respectful partnership built on mutual trust and understanding through good communication. Each person is treated as an individual with the aim of respecting people’s ownership of their health information, rights and preferences while protecting their dignity and empowering choice. Person-centred practice recognises the role of family and community with respect to cultural and religious diversity.

Patient rights and dignity of risk Nursing practice Nurses apply person-centred and evidence-based decision-making, and have a responsibility to ensure the delivery of safe and quality care. Nurses must: § practise in accordance with the standards of the profession and broader health system (including the NMBA standards, codes and guidelines, the Australian Commission on Safety and Quality in Health Care and Standards for aged care) § provide leadership to ensure the delivery of safe and quality care and understand their professional responsibility to protect people, ensuring employees comply with their obligations, and § document and report concerns if they believe the practice environment is compromising the health and safety of people receiving care.

Patient rights and dignity of risk Decision-making Making decisions about healthcare is the shared responsibility of the person (who may wish to involve their nominated partners, family and friends) the nurse and other health professionals. Nurses should create and foster conditions that promote shared decision-making and collaborative practice. To support shared decision-making, nurses must: § take a person-centred approach to managing a person’s care and concerns, supporting the person in a manner consistent with that person’s values and preferences § advocate on behalf of the person where necessary, and recognise when substitute decision-makers are needed (including legal guardians or holders of power of attorney) § support the right of people to seek second and/or subsequent opinions or the right to refuse treatment/care

Patient rights and dignity of risk Decision-making § recognise that care may be provided to the same person by different nurses, and by other members of the healthcare team, at various times § recognise and work within their scope of practice which is determined by their education, training, authorisation, competence, qualifications and experience, in accordance with local policy (see also the NMBA Decisionmaking framework) § recognise when an activity is not within their scope of practice and refer people to another health practitioner when this is in the best interests of the person receiving care § take reasonable steps to ensure any person to whom a nurse delegates, refers, or hands over care has the qualifications, experience, knowledge, skills and scope of practice to provide the care needed (see also the NMBA Decision-making framework), and § recognise that their context of practice can influence decision-making. This includes the type and location of practice setting, the characteristics of the person receiving care, the focus of nursing activities, the degree to which practice is autonomous and the resources available.

Advance care directives § The common law of advance care directives demonstrates patient’s rights at common law to make decisions § An advance care directive balances: • Respecting a competent adult’s right of autonomy or self determination to control his or her body; and • the interest of the State in protecting and preserving the lives and health of its citizens 12

Consent principles § Consent issues with advance care directives • An adult may make an advance care directive • The person must have mental capacity at the time of making the directive • The decision must not be made under duress • A valid clear and unambiguous advance care directive must be complied with - failure to comply with an advance care directive can be an assault and battery • The advance care directive must be current - the decision may be revoked at any time 13

Legislation and guidelines § The Legislation and policy differs from State to State: • National Framework for Advance Care Directives September 2011 • NSW Health has published a Guideline on Using Advance Care Directives (GL 2005_056) & End-of-Life Care and Decision-making Guidelines (GL 2005_057) • RACGP Position Statement https: //www. racgp. org. au/guidelines/advancecareplans • NSW Health Using Resuscitation Plans in End of Life Decisions PD 2014_030 • http: //planningaheadtools. com. au/ • http: //healthlaw. planningaheadtools. com. au/ • http: //www. publicguardian. justice. nsw. gov. au/ • Other jurisdictions, e. g. ACT – The Medical Treatment (Health Directions) Act 2006 (ACT) 14

Cases & principles § Hunter and New England Area Health Service v A (by his Tutor) (2009) 74 NSWLR 88 • Mr A, Jehovah's witness, appointed an enduring guardian, ticked “refuse” for dialysis • Mc. Dougall J held that the decision was a considered decision and document was a valid advance care directive 15

Cases & principles § Hunter and New England Area Health Service • Except in the case of emergency, where it is not practicable to obtain consent, at common law it is a battery to administer medical treatment without consent. There are qualifications • Consent may be express or implied – consent is a question of fact 16

Cases & principles § Hunter and New England Area Health Service • Consent to medical treatment may be given by a capable adult, a guardian appointed by the Guardianship Tribunal or in some cases a spouse • At common law a next of kin cannot provide consent, however a “responsible person” may consent pursuant to the Guardianship Act 17

Cases & principles § Hunter and New England Area Health Service • Guardianship Act, s. 33 A – hierarchy of “responsible person”: o A guardian, if none o A spouse, if none o o A carer, if none (otherwise than for remuneration, provides domestic services and support or arranges for the person to be provided with such support) Any other relative or friend with a close and continuing relationship 18

Cases & principles § Hunter and New England Area Health Service • Emergency care that is reasonably necessary may be given without consent if not practicable to obtain consent and person has not indicated that he/she does not wish to receive the treatment 19

Cases & principles § Hunter and New England Area Health Service • A capable adult may make an advance care directive – it must be clear and unambiguous and extend to the situation at hand. It must be respected. Qualification to save an unborn child. • There is a presumption that an adult is capable, however, the presumption may be rebutted – it is necessary to take into account the importance of the decision and the ability of the individual to receive, retain and process the information. • If there is a genuine and reasonable doubt as to the validity or operation of the advance care directive, an application can be made to the court for relief. 20

Cases & principles § Hunter and New England Area Health Service • It is not necessary that the person giving it should have been informed of the consequences of deciding in advance to refuse treatment. Nor does it matter that the decision is based on religious, social or moral grounds. A discernible reason is not required, as long as it is made voluntarily. • A consent may be ineffective if it does not represent the independent exercise of the person’s volition, for example, if the person has been subject to undue influence. 21

Cases & principles § Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 • Brightwater operated a residential aged care facility in Perth • Mr Rossiter – a quadriplegic, mentally competent – personally unable to move and only able to talk through a tracheotomy. • He directed his medical service provider to discontinue the provision of nutrition and general hydration, the consequence he could die from starvation. • Mr Rossiter was not terminally ill nor dying. • Held no obligation in WA to provide the necessities of life against wishes. • If after the provision of full advice, he repeats his direction to Brightwater that they discontinue the provision of nutrition and hydration to him, Brightwater was under a legal obligation to comply. 22

Charter of aged care rights Schedule 1, User Rights Principles 2014 (Cth) 1 Meaning of I, me and my If a clause of this Schedule uses the expression I, me or my, the clause applies to a care recipient who is provided with: (a) residential care; or (b) home care; or (c) flexible care in the form of short‑term restorative care. 23

Charter of aged care rights 2 Care recipient’s rights I have the right to: 1. safe and high quality care and services; 2. be treated with dignity and respect; 3. have my identity, culture and diversity valued and supported; 4. live without abuse and neglect; 5. be informed about my care and services in a way I understand; 6. access all information about myself, including information about my rights, care and services; 7. have control over and make choices about my care, and personal and social life, including where the choices involve personal risk; 24

Charter of aged care rights 2 Care recipient’s rights I have the right to: 8. have control over, and make decisions about, the personal aspects of my daily life, financial affairs and possessions; 9. my independence; 10. be listened to and understood; 11. have a person of my choice, including an aged care advocate, support me or speak on my behalf; 12. complain free from reprisal, and to have my complaints dealt with fairly and promptly; 13. personal privacy and to have my personal information protected; 14. exercise my rights without it adversely affecting the way I am treated. 25

Aged Care Quality Standard 1 Consumer outcome (1) I am treated with dignity and respect, and can maintain my identity. I can make informed choices about my care and services, and live the life I choose. Organisation statement (2) The organisation: (a) has a culture of inclusion and respect for consumers; and (b) supports consumers to exercise choice and independence; and (c) respects consumers’ privacy. 26

Aged Care Quality Standard 1 Assessment against this Standard For each of the requirements, organisations need to demonstrate that they: • understand the requirement • apply the requirement, and this is clear in the way they provide care and services • monitor how they are applying the requirement and the outcomes they achieve • review outcomes and adjust their practices based on these reviews to keep improving. 27

Open to disclosure & dealing with difficult behaviours § What is open disclosure • § Open disclosure is the open discussion of incidents that result in harm to a patient while receiving health care with the patient, their family, carers and other support persons. The essential elements of open disclosure are outlined in the national Australian Open Disclosure Framework. Who is obliged to provide open disclosure? • Medical practitioners and registered nurses are required to practice open disclosure under the relevant Code of Conduct • Open disclosure is industry best practice § Apologies compared to admissions of liability § Dealing with difficult behaviours and bullying by residents and families smarterlaw. com. au 28

Open disclosure Principles of open disclosure 1. Open and timely communication If things go wrong, the patient, their family and carers should be provided with information about what happened in a timely, open and honest manner. The open disclosure process is fluid and will often involve the provision of ongoing information. 2. Acknowledgement All adverse events should be acknowledged to the patient, their family and carers as soon as practicable. Health service organisations should acknowledge when an adverse event has occurred and initiate open disclosure. 3. Apology or expression of regret As early as possible, the patient, their family and carers should receive an apology or expression of regret for any harm that resulted from an adverse event. An apology or expression of regret should include the words ‘I am sorry’ or ‘we are sorry’, but must not contain speculative statements, admission of liability or apportioning of blame.

Open disclosure Principles of open disclosure 4. Supporting, and meeting the needs and expectations of patients, their family and carer(s) The patient, their family and carers can expect to be: • fully informed of the facts surrounding an adverse event and its consequences • treated with empathy, respect and consideration • supported in a manner appropriate to their needs. 5. Supporting, and meeting the needs and expectations of those providing health care Health service organisations should create an environment in which all staff are: • encouraged and able to recognise and report adverse events • prepared through training and education to participate in open disclosure • supported through the open disclosure process.

Open disclosure Principles of open disclosure 6. Integrated clinical risk management and systems improvement § Thorough clinical review and investigation of adverse events and adverse outcomes should be conducted through processes that focus on the management of clinical risk and quality improvement. Outcomes of these reviews should focus on improving systems of care and be reviewed for their effectiveness. The information obtained about incidents from the open disclosure process should be incorporated into quality improvement activity. 7. Good governance § Open disclosure requires good governance frameworks, and clinical risk and quality improvement processes. Through these systems, adverse events should be investigated analysed to prevent them recurring. Good governance involves a system of accountability through a health service organisation’s senior management, executive or governing body to ensure that appropriate changes are implemented and their effectiveness is reviewed. Good governance should include internal performance monitoring and reporting.

Open disclosure Principles of open disclosure 8. Confidentiality § Policies and procedures should be developed by health service organisations with full consideration for patient and clinician privacy and confidentiality, in compliance with relevant law (including federal, state and territory privacy and health records legislation). However, this principle needs to be considered in the context of Principle 1: Open and timely communication.

Risk management • Respect the consumer’s right to dignity and respect • Assess the risks • Identify options • Ascertain who is able to consent • Risk management • Advise of the risks • Waivers and disclaimers • Consult with family, subject to privacy obligations • Train staff • Supervision 33

Conclusion and questions alison. choyflannigan@hallandwilcox. com. au Further information: https: //www. safetyandquality. gov. au/publications-and-resources/resourcelibrary/australian-open-disclosure-framework-open-disclosure-principleselements-and-process https: //www. nursingmidwiferyboard. gov. au/Codes-Guidelines. Statements/Professional-standards. aspx https: //www. agedcarequality. gov. au/providers/standard-1 Disclaimer: This presentation is for educational purposes only and is not to be used as a legal opinion or advice. All endeavours have been made to ensure accuracy as at its date. smarterlaw. com. au

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