HEALTH LAW SEMINAR Dealing with Unexpected Death in Health & Aged Care
Maria Kokkinakos Education Committee ACHSM
The Quakers Hill Nursing Home fire: Some lessons learned Deputy State Coroner Hugh Dillon Holman Webb Health Law Seminar 2 September 2015
Dealing with unexpected death in the hospital setting Presented by: Zara Officer Special Counsel September 2015
Section 81 Coroners Act The function of the coroner as required by Section 81 of the Coroners Act 2009: identify the deceased establish the date and place of a person s death; establish the manner and cause of a person s death. Under Section 82 the Coroner has power to make recommendations. 15
Inquest into death of Manjit Singh, 17 August 2015 In our society if a person dies suddenly or unexpected, or that person s death may have been caused by some unnatural event, or the cause and circumstances of the death raise questions of public health or safety, a Coroner will investigate the case 16
Securing evidence Witness statements Autopsy TIPS 17
In conclusion If there is an unexpected death: Secure the scene, notify the Coroner and police and allow the scene to be investigated Consider whether an autopsy is necessary Be aware that evidence may need to be secured Establish which staff are best placed to provide statements Remember that statements are made much easier if there are good quality clinical notes 18
Pre-Employment Screening Presented by: Rachael Sutton Partner September 2015
Recruitment involves Analyzing future staff needs Focus activity to attract only qualified candidates Focus activity with a view to retention Ensure process is transparent and consistent with policy
Recruiting What is a great employee? Knowledge, skills and abilities Cultural fit Attitudes and motivation The saying - People are you most important asset - is wrong! The right people are your most important asset!
Pre-employment Screening Pre-employment screening can include any, or all, of the following: Applicant interviews Tests to confirm general ability, aptitude and personality Medical checks; and Reference and background checks
Pre-employment Screening cont Recruiting is a costly exercise so make it count by asking during the interview How long did they spend in previous jobs Recruitment source who were they referred by? Is this a Salary/ Wage focused candidate Do they have accurate perceptions of what is involved? Did you make a promise during the interview can you deliver on it?
after the interview further checks Short listing of candidates Reference checks once candidate is chosen, but prior to any offers Qualification check - documentary evidence One (possibly two) competency based interviews by the line manager and HR; Medical assessment, and Consent from the candidate should be obtained prior to conducting any searches. This might be included on an application form or requested following an interview.
after the interview further checks Background checks such as police/ criminal checks, credit history and litigious conduct and working with children checks if direct contact with children is involved Mandatory requirements - Eg licenses to practice, registrations, legal right to work in Australia ASIC Register a quick search of the ASIC Register will disclose whether someone has been deemed a banned/disqualified person in terms of Board appointments.
after the interview further checks AHPRA inquiries can be made in respect to conditions on registration or whether a practitioner is suffering from an impairment NSW Service Check Register Section 133C of the Health Service Act allows a public health organisation to share or exchange appointment information about a health practitioner with a private health facility licensee (registered under the Private Health Facilities Act 2007 (NSW)) subject to conditions, ***amendments not yet commenced
Unfavourable information Although pre-employment screening has a worthwhile role to play, it also exposes employers to potential risks under anti-discrimination legislation. Applicants for employment who are treated less favourably than other applicants because of a ground or attribute are protected These risks need to be understood and managed if an employer is to minimise the likelihood of a claim.
Questions
ADVANCE CARE DIRECTIVES Presented by: Alison Choy Flannigan Partner September 2015
Introduction An advance care directive, also known as a living will or advance care planning, is: a life management document, which may include end of life decision making or a decision not to receive medical treatment of specific kinds 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 30
Legislation and guidelines The Legislation and policy differs from State to State: http://mycarechoices.org.au/ National Framework for Advance Care Directives September 2011 NSW Health has published a Guideline on Using Advance Care Directives (GL2005_056) & End-of-Life Care and Decision-making Guidelines (GL2005_057) RACGP Position Statement http://www.racgp.org.au/download/documents/policies/clinical/advancedcareplan ning_positionstatement.pdf State-wide Resuscitation Plan form for use in acute hospital settings: http://www.health.nsw.gov.au/patients/acp/pages/resuscitation-plans-in-end-oflife-decisions.aspx 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) 31
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 McDougall J held that the decision was a considered decision and document was a valid advance care directive 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 32
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 33
Cases & principles Hunter and New England Area Health Service Guardianship Act, s. 33A hierarchy of responsible person : A guardian, if none A spouse, if none 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 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 34
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. 35
Cases & principles Hunter and New England Area Health Service 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. 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. 36
Practical tips Sample forms ACD Form (Central Coast Local Health District/Hunter New England): http://www.cclhd.health.nsw.gov.au/patientsandvisitors/care rsupport/cpa/documents/acp_workbook.pdf Enduring Guardian Form: http://www.publicguardian.justice.nsw.gov.au/pages/publicg uardian/pg_planning/pg_enduring.aspx 37
Advance care directives Questions? Alison.choyflannigan@holmanwebb.com.au The contents of this publication is general in nature and should not be relied upon as legal advice. No reader should act on information contained within the publication without first consulting us. 38
Health Law Seminar Implementing the Commonwealth Palliative Care Guidelines ww.palliativecareonline.com.au Alison Verhoeven Chief Executive, Australian Healthcare and Hospitals Association
Course content 4 COMPAC modules Explore and understand Guidelines Apply the Guidelines when assisting people with life-limiting illness Reflect on own practice Reflect on end of life needs Screening and assessment skills Advanced care planning
Course content 2 skills modules New, revised portal launched in July 2 new modules Pain management Recognising the deteriorating patient Updated COMPAC modules, plus new resources Focus on skills development
http://www.palliativecareonline.com.au/ to register or to find out more
Dying in Australia what isn t legal? Presented by: Dr Tim Smyth Special Counsel September 2015
In a nutshell? Suicide itself is not a crime Assisting suicide is a crime and may also be murder or manslaughter Euthanasia may be murder or manslaughter
Language and meaning matter Voluntary euthanasia is generally where a person performs an act that intentionally ends the life of another person at the request of the other person. Assisted suicide is where a person dies after being provided by another person (often a health professional) with the means or knowledge required to kill themselves
Other laws relevant It is also possible that other laws may be broken: offences under State and Territory drugs and poisons legislation Commonwealth legislation regulating importation of drugs into Australia laws regulating the use of postal and internet services
The law does allow you to die Courts in Australia, Canada, the UK and the USA have all made it clear that there is no legal duty to continue medical treatment that is futile. These courts have also upheld the right of competent adults to decide to cease treatment that is keeping them alive.
Prosecutions In Australia, the Directors of Public Prosecutions must decide whether to proceed with a prosecution of persons who have assisted with euthanasia and/or voluntary suicide by another person. All of the Australian State and Territory DPPs have prosecution guidelines, although none have specific guidelines relating to prosecutions for euthanasia or assisted suicide.
UK DPP Guidelines In England and Wales there are now specific DPP prosecution guidelines on whether to prosecute in cases of alleged assisted suicide. A draft policy was prepared and following wide public consultation, the policy was published in 2010. The policy sets out 16 factors in favour of prosecuting and 6 factors that do not support prosecution.
Current law in Australia 1. Withholding or withdrawing life sustaining treatment is lawful in a range of circumstances affirmed by a number of judicial decisions in Australia. These circumstances include: (a) a competent adult decides not to have or continue the treatment; (b) a valid advance care directive was made by a competent person who subsequently loses their capacity to make such decisions;
Current law. (c) a substitute decision maker (eg guardian or person responsible under guardianship legislation) makes a decision not to have or continue the treatment; (d) a parent consents in relation to their child and the decision is in the best interests of the child; (e) a doctor reasonably determines that the treatment is futile; and/or (f) a court order authorises the withholding or cessation of treatment.
Current law. 2. Provision of palliative care in accordance with a plan agreed by the patient or their substitute decision maker is lawful where the primary intention of the plan is to relieve pain and to support and comfort the patient and not to cause or hasten death (even though that might be a side effect of the actions taken under the plan). 3. Euthanasia and assisted suicide is unlawful in all States and Territories.
So what to do? While each situation must involve a detailed consideration of the circumstances for the individual patient or client, the following factors are likely to support a conclusion that the death of the patient or client following withholding of treatment, withdrawal of treatment and/or the implementation of a palliative care plan was lawful.
Factors 1. The patient has a terminal illness with no reasonable prospect of cure or recovery and this conclusion is supported by independent health professionals. 2. If the patient is an adult and competent to make decisions regarding their treatment: a. the patient has directed that the treatment should be withheld or withdrawn and/or agreed to the palliative care plan; b. an independent health professional agrees that the patient is competent to make such a decision; c. the patient is given a reasonable time to reconsider and confirm their decision.
Factors 3. If the patient is an adult and is not competent to make these decisions, the patient has made an advance care directive clearly indicating their wishes and/or a substitute decision maker under guardianship legislation has agreed with the proposed decision. 4. If the patient is a child and has not expressed a wish to the contrary, the parent or legal guardian has agreed to the plan and the plan has been confirmed by an independent health professional as being in the best interests of the child.
If none of the above? In the absence of (2), (3) or (4), a court has approved the plan.
HEALTH LAW SEMINAR Dealing with Unexpected Death in in Health & Aged Care